Shri Rambir Singh vs Smt. Balwant Kaur Choudhary & Anr.
2010 Latest Caselaw 2002 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          RC.REV.No.60/2006


                                         Reserved on   : 18.3.2010
                                         Pronounced on : 19.4.2010

IN THE MATTER OF :

SHRI RAMBIR SINGH                                      ..... Petitioner

                        Through: Mr. S.C. Singhal with
                                 Mr. S.R. Sharma, Advs.

                        Versus


SMT. BALWANT KAUR CHOUDHARY & ANR.                     .....Respondents

                        Through: Nemo.



  CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                      Yes

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be
        reported in the Digest?                              Yes


HIMA KOHLI, J.

1. Challenge has been laid in the present petition to an order

dated 19.7.2006 passed by the learned Additional Rent Controller

dismissing an application filed by the petitioner/tenant praying inter

alia for issuance of fresh summons to him under the Third Schedule of

the Delhi Rent Control Act (in short 'the Act') ; or in the alternate, for

grant of 15 days time to file a leave to defend application to be

reckoned from 13.7.2006 ; or permit the written statement filed by

him to be taken as the grounds for leave to defend the eviction

petition filed by the respondents/landladies under Section 14D of the

Act. By the same order, after holding that the petitioner/tenant had

failed to seek leave to defend the eviction petition within the

prescribed period of limitation upon receipt of summons under the

Third Schedule, the statement made by the respondents/landladies in

the eviction petition was deemed to be admitted and an eviction order

was passed in respect of the tenanted premises bearing House

No.31/7, Ramesh Nagar, New Delhi.

2. Before examining the submissions made by the learned

counsel for the petitioner/tenant, it is worth mentioning that though

the present petition has remained on the regular board since

7.12.2009, none has been appearing for the respondents/landladies.

This is despite the fact that on the basis of an application for early

hearing filed by the respondents/landladies on the ground that both of

them are widows and additionally, the respondent No.1 is a senior

citizen, which was allowed vide order dated 15.1.2009, hearing of the

present case was expedited and on 17.02.2009, it was directed that

the matter be listed for final hearing, subject to overnight part-heard.

3. The sequence of events relevant for deciding the present

case are that upon receiving the eviction petition filed by the

respondents/landladies under Section 14D of the Act, the same was

registered by the learned Additional Rent Controller on 01.03.2006 and

summons were issued to the petitioner/tenant by ordinary process

returnable on 18.5.2006. As a result, summons for settlement of

issues under Order V Rules 1 & 5 of CPC, dated 9.3.2006, were issued

to the petitioner/tenant calling upon him to appear in court on

18.5.2006. The said summons were received by the petitioner/tenant

on 17.3.2006. On 5.5.2006, the petitioner/ tenant filed his written

statement accompanied by an application under Section 148 CPC

praying inter alia for enlargement of time and for condonation of delay

of 19 days in filing the written statement.

4. A perusal of the trial court record shows that an

endorsement dated 5.5.2006 was made on the margin of the aforesaid

application to the effect that the same may be put up with the file on

the date fixed. On 18.5.2006, an application was filed by the

respondent No.1/landlady under Sections 25B(2) & 25B(3) of the Act

read with Section 151 CPC stating inter alia that a perusal of the

application filed by the petitioner/tenant under Section 148 of the CPC

revealed that the summons of the eviction petition filed under Section

14D of the Act had not been issued by the court staff in the prescribed

format of the Third Schedule of the Act, which is mandatory. It was

further prayed that the period of filing the leave to defend application

may be computed from the date of expiry of 30 days as mentioned in

the summons served upon the petitioner/tenant, or the said period be

computed from the date when the petitioner/tenant put in appearance,

i.e., 5.5.2006 or 18.5.2006 ; or in the alternate, fresh summons be

issued in the prescribed format of the Third Schedule of the Act.

5. As the Presiding Officer was on leave on 18.5.2006, the

Ahlmad of the court endorsed a note on the margin of the aforesaid

application filed by respondent No.1/landlady that the same be put up

with the file on 22.5.2006 at 2.00 PM. Pertinently, a copy of the said

application was not served upon the petitioner/tenant or his counsel.

On 22.5.2006, the aforesaid application filed by the respondent

No.1/landlady was taken up by the Additional Rent Controller in the

absence of the petitioner/tenant and his counsel. After recording the

statement of the counsel for the respondents/landladies to the effect

that ordinary summons had been issued to the petitioner/tenant

instead of summons under the Third Schedule of the Act, fresh

summons were directed to be issued under the Third Schedule of the

Act, returnable on 13.7.2006.

6. In terms of the aforesaid order, fresh summons were issued

under the Third Schedule of the Act on 23.5.2006, which were duly

received on behalf of the petitioner/tenant on 27.5.2006. On

13.7.2006, the petitioner/tenant filed an application under Section 151

CPC stating inter alia that he had telephonically informed his counsel

that he received summons from the court, upon which the counsel

informed him after checking the records, that the written statement

and application had already been filed and, therefore, nothing further

needed to be done. It was further stated that a couple of days prior

to the date of hearing, i.e., on 12.7.2006, the petitioner/tenant

brought the copy of the summon so received by him and showed the

same to his counsel and only then did it dawn on the counsel that

summon had been issued under the Third Schedule of the Act.

Immediately thereupon, the said application was drafted stating inter

alia that the written statement had already been filed by the

petitioner/tenant along with an application for condonation of delay,

which was duly served upon the other side and that the application

filed by the respondents/landladies for issuance of fresh summons was

not served on the petitioner/tenant or his counsel, who remained

under the bona fide impression that as summons received

subsequently were with regard to the same case, no further steps

were required to be taken by the petitioner/tenant.

7. In the aforesaid circumstances, it was prayed by the

petitioner/tenant that fresh summons be issued to him under the Third

Schedule, or he be granted 15 days time for filing a leave to defend

application, which period may be reckoned from 13.7.2006; or in the

alternate, the written statement filed by the petitioner/tenant may be

taken as grounds of leave to defend the eviction petition filed by the

respondents/landladies. The aforesaid application however came to be

dismissed by the learned Additional Rent Controller, who passed the

impugned order. On the same date, an eviction order was passed in

favour of the respondents/landladies and against the petitioner/tenant,

which has resulted in filing of the present petition by him.

8. Counsel for the petitioner/tenant states that the learned

Additional Rent Controller did not appreciate the fact that the

summons directed to be issued, vide order dated 1.3.2006, were not

in proper format under the Third Schedule of the Act and when the

aforesaid mistake on the part of the court staff was pointed out by the

respondents/landladies, who filed an application dated 18.5.2006, the

said mistake ought to have been rectified by affording a proper

opportunity to the petitioner/tenant to file an application for leave to

defend. It was contended that the petitioner/tenant having already

filed his written statement on 5.5.2006 along with an application

seeking condonation of delay and enlargement of time for filing the

same, with an advance copy to the other side, it was incumbent on the

part of the respondents/landladies to have furnished a copy of the

application dated 18.5.2006, whereby fresh summons under the Third

Schedule of the Act were sought to be issued to the petitioner/tenant.

9. Counsel for the petitioner/tenant stated that his client

ought to have been afforded an opportunity to reply to the application

moved by the respondents/landladies under Section 25B (2) & (3) of

the Act, particularly when they had themselves stated that the mistake

of issuing the summons in the wrong format had occurred on account

of an oversight on the part of the court staff and also, in view of the

fact that the petitioner/tenant had already filed his written statement.

It was argued that the entire confusion in the mind of the

petitioner/tenant occurred on account of the mistake on the part of the

court staff, for which he cannot be made to suffer as there was no

negligence attributable to him. To fortify his submissions, counsel for

the petitioner/tenant relied on a judgment in the case of Shri Rishi

Prakash vs. Shri Raghbar Dayal, reported as 1979 (1) R.C.R. 730

and an order dated 8.2.2010 passed by the Division Bench of this

Court in FAO(OS) No.67/2010 entitled Srei Venture Capital Ltd. &

Anr. vs. Vijay Gopal Jindal.

10. As noted above, none has appeared for the

respondents/landladies. However, written submissions filed by them

on 9.9.2008 have been duly perused. The respondents/landladies

have supported the impugned order and stated that both of them are

widows and that the petitioner/tenant is trying to prolong the case so

as to defeat the intention of the legislature as contained in Section

14D of the Act, which requires a summary procedure for cases

involving widows. It is further stated that though the statutory

provisions provide that summons are required to be sent in the

prescribed format under Section 25B of the Act, on account of

oversight by the Rent Controller in issuing the summons, in the first

instance, the same were issued under Order 5 of the CPC. Reliance is

placed on a judgment of this Court in the case of Shri Rishi Prakash vs.

Shri Raghbar Dayal, reported as 1979 (1) RCR 730 to state that non-

compliance with the provisions for issuance of summons in the format

prescribed in the Third Schedule is a material irregularity in the

disposal of a petition for eviction filed under Section 14(1)(e) or 14A

read with Section 25B of the Act and that when such a defect is

brought to the notice of the court, it ought to have rectified the

proceedings by serving the summons in the proper format upon the

tenant to enable him to take steps for his defence under Sub-section 4

of the Act. In the written statement, the respondents/landladies have

stated that they had pointed out the mistake in issuance of summons

in the ordinary process and upon so, intimating the learned ARC, he

had rectified the defect by issuing fresh summons under the Third

Schedule of the Act and that even thereafter, as the petitioner did not

seek leave to defend within the period prescribed under the Act, the

learned ARC was justified in passing an order of eviction against him.

11. I have heard the learned counsel for the petitioner/tenant,

considered the written submissions filed on behalf of the

respondents/landladies and also perused the record of the court below,

including the order sheet and the relevant applications filed by the

parties.

12. It is undoubtedly true that the requirement of issuance of

summons in the prescribed format is a procedural one as the intention

is to apprise the defendant/respondent of filing of the petition and at

the same time, calling upon him to take steps to defend the same.

However, Section 25B of the Act has been legislated in such a manner

that keeping in view the summary procedure prescribed for certain

type of cases as specified under Section 14(1)(e), Section 14A, B, C

and D, the statute has provided special safeguard to the respondents

in such like cases. Sub-section (2) of Section 25B of the Act mandates

that the Controller shall issue summons, in relation to every

application referred to in sub-Section (1), in the format prescribed in

the Third Schedule. The said summons notifies the respondent that

he has to file an application for leave to appear and contest within the

prescribed period and in a prescribed manner. Sub-section (4) of

Section 25B of the Act lays emphasis on the fact that the tenant on

whom the summon is duly served in the format specified in the Third

Schedule, shall not contest the prayer for eviction without obtaining

such leave. In other words, any non-compliance of the aforesaid

provisions would amount to a material irregularity in the disposal of

the eviction petition filed under Sub-section (1) of Section 25B of the

Act. Thus, while the combined effect of Section 25B (6),(7)&(8) of the

Act is that it would lead to expeditious disposal of an eviction petition

so as to ensure that a landlady need not wait or suffer for a long time,

it is only such a tenant on whom summons have been duly served in

the prescribed format as envisaged under Sub-sections (2),(3) & (4) of

Section 25B of the Act who is precluded from contesting the petition

for eviction, when leave to appear and contest the same is not filed by

him within the prescribed period within the prescribed period.

13. In the present case, the factual position is undisputed. In

the first instance, when the eviction petition was filed by the

respondents/landladies, vide order dated 1.3.2006, the learned ARC

issued summons to the petitioner/tenant by ordinary process instead

of under the Third Schedule, as prescribed under Sub-section (2) of

Section 25B of the Act. The said summons also called upon the

petitioner/tenant to appear in the court on a specified date, i.e., on

18.5.2006. The petitioner/tenant filed his written statement on

5.5.2006, duly accompanied by an application seeking enlargement of

time and condonation of delay. Pertinently, copies of the said written

statement as also the application were duly served upon the other

side. The said application was however directed to be put up with the

file on the date fixed, i.e., on 18.5.2006.

14. On 18.5.2006, the respondents/landladies became aware of

the fact that summons were issued in ordinary process and they filed

an application before the learned ARC under Section 25B(2) and (3) of

the Act. While filing such an application, they chose not to serve a

copy thereof on the petitioner/tenant or his counsel. It was a matter

of chance that on the said date, the Presiding Officer was on leave. As

a result, the Ahlmad of the court took the application on the record

and made a note that the same be put up with the file on 22.5.2006.

On 22.5.2006, when the aforesaid application filed by the respondent

No.1/landlady came up before the learned ARC, in the absence of any

intimation of the said date and in view of failure to serve a copy of the

application on the petitioner/tenant, none was present on his behalf.

On the said date, fresh summons were directed to be issued as per the

prescribed format to the petitioner/tenant returnable on 13.7.2006.

The said summons were received on his behalf on 27.5.2006. It was

at this stage that some confusion arose at the end of the

petitioner/tenant who remained under the bona fide impression that

having filed a written statement in response to the first set of

summons issued to him under ordinary process, along with an

application for enlargement of time, he had done all that was required

of him in law. It is further stated that the petitioner/tenant made

doubly sure that no further act was required to be done on his part by

informing his counsel as to the receipt of the second set of summons,

upon which his counsel assured him that nothing further needed to be

done as necessary steps had already been taken by them in the

matter.

15. It was submitted by the counsel for the petitioner/tenant

that only upon the petitioner/tenant contacting his counsel a couple of

days prior to the date of hearing, i.e., on 12.7.2006 and showing him

a copy of the summons received by him, did it dawn upon the counsel

that the second set of summons had been issued as per the prescribed

format under sub-section (2) of Section 25B of the Act. It was at that

stage that an application was filed by the petitioner/tenant explaining

the circumstances in which he did not file any application for leave to

defend the eviction petition within the prescribed time. Apart from

requesting that fresh summons be issued to him or he be granted 15

days' time to file a leave to defend application while reckoning the

period of 15 days from 13.7.2006, an alternate prayer was made by

the petitioner/tenant that the written statement already filed by him

on the record, may be taken as grounds for leave to defend the

eviction petition.

16. Having regard to the aforesaid facts and circumstances, the

petitioner/tenant is justified in taking a stand that he cannot be made

an scapegoat for a mistake committed by the court and the court staff.

Undoubtedly, grave prejudice has been caused to the petitioner/tenant

on account of the said mistake. Issuance of summons by ordinary

process resulted in him filing a written statement. Failure on the part

of the petitioner/tenant to file a leave to defend application even after

receipt of the second set of summons pursuant to order dated

22.05.2006, occurred due to the aforesaid mistake and under a

bonafide impression that he had already taken necessary steps by

filing a written statement. Such a mistake cannot be treated as mala

fide or deliberate, nor can it entitle the respondents/landladies to steal

a march over the petitioner/tenant by insisting that in the given

circumstances, the consequences as prescribed under sub-section (4)

of Section 25B of the Act ought to follow as a natural corollary.

Interestingly, even the respondents/landladies were conscious of the

fact that such a stand if taken by them, would be fallacious. This is

borne out by the fact that in the application filed by respondent

No.1/landlady on 18.5.2006, the blame was not sought to be placed at

the door of the petitioner/tenant. Rather, it was correctly stated that

summons were sent in the ordinary process on account of an error on

the part of the court staff.

17. In such circumstances, no mala fides can be imputed to the

petitioner/tenant. Nor has any reason been shown as to why the

petitioner/tenant would not want to contest the eviction petition, had

he been aware of the fact that on non-filing of his leave to contest

within the prescribed period, would result in such a grave consequence

of an eviction order being automatically passed against him. This is

more so, when the petitioner/tenant had not dragged his feet and had

already filed his written statement on the record, with a copy to the

other side. It can also not be said that the said mistake on the part of

the petitioner/tenant was not bona fide or was a deliberate attempt on

his part to prolong the litigation. Nor can it confer an undeserved

benefit on the opposite party, at the cost of the petitioner/tenant.

18. Clearly, in the present case, the fault lay at the door of the

court when summons in the eviction petition filed under Section 14D of

the Act were issued to the petitioner/tenant by ordinary process,

instead of under the Third schedule. It is well settled that no man

should suffer because of the fault of the court or on account of delay in

the procedure : "actus curiae neminem gravabit" - an act of court

shall prejudice no man. (Ref.: Vineet Kumar vs. Mangal Sain

Wadhera, (1984) 4 SCC 284 and Suresh Chand vs. Gulam Chisti,

AIR 1990 SC 897).

19. In the aforesaid circumstances, the impugned order cannot

be sustained as the same is not in accordance with law. The learned

ARC ought to have exercised his discretion in favour of the

petitioner/tenant and accepted the explanation offered by him. He

however fell in error by refusing to accept the written statement filed

by the petitioner/tenant and treating the same as his application for

leave to contest the eviction petition. In the given circumstances, no

ulterior motives can be attributed to the petitioner/tenant for

intentionally trying to prolong the proceedings or causing any delay.

Rather, he has been gravely prejudiced. Accordingly, the impugned

order is set aside and the present petition is allowed. The written

statement already filed by the petitioner/tenant shall be treated as his

application for leave to contest the eviction petition. Pleadings in the

said application shall be completed by giving liberty to the

respondents/landladies to file their reply thereto.

20. Parties are directed to appear before the learned ARC on

3.5.2010. As none has appeared on behalf of the

respondents/landladies in the present proceedings, the learned ARC

shall issue notices for appearance to them in accordance with law.

Considering the fact that the eviction petition of the

respondents/landladies filed under Section 14D of the Act has been

considerably delayed for no fault of the respondents, the learned ARC

is requested to dispose of the eviction petition as expeditiously as

possible, and preferably within a period of six months from the date of

completion of pleadings.

21. In the peculiar facts and circumstances of the case, while

allowing the present petition, there shall be no order as to costs.

(HIMA KOHLI) JUDGE APRIL 19, 2010 sk