M/S Aster Publishing vs Sh. Niwas Aggarwal & Ors.
2011 Latest Caselaw 897 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       RC.REV. No. 296/2010



                                   Date of Decision:- 15.2.2011

      M/S Aster Publishing                                  ...Petitioner
                                 Through: Mr. Arun K.Varma for
                                 Petitioner.

                                 Versus

      Sh. Niwas Aggarwal & Others                        ... Respondents

                                 Through: Mr. Shiv C. Garg for
                                 Respondents.

CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA

1.    Whether reporters of local paper may be allowed to see
      the judgment?                       Yes
2.    To be referred to the reporter or not? Yes
3.    Whether the judgment should be referred in the Digest?
                                         Yes

S. L. BHAYANA, J.

The present revision petition under section 25-B(8) of Delhi Rent

Control Act, 1958 (for short as "the Act") has been filed by the

petitioner against the order dated 02.08.2010 passed by Additional Rent

Controller (for short as "the Controller") Delhi, whereby leave to

defend/contest the eviction petition has been dismissed and an eviction

order is passed under section 14(1)(e) read with section 25(B) of the Act

against the petitioner in respect of suit premises.

2. The facts, necessary to be highlighted in the present petition as

alleged by the petitioner/tenant, are that the petitioner/tenant has filed an

application under section 25-B of the Act for leave to contest on

RC.REV. No. 296/2010 P a g e 1 of 8 27.11.2009 wherein it is also stated that he was not served personally

and someone threw summons of the case near his shop on 14.11.2009

and accordingly he filed an application for leave to defend. The

respondent raised an objection that the said application is beyond the

period of limitation of one day as such the decree for the eviction of the

tenant should be passed. The petitioner/tenant has also raised an

objection that the alleged service of the summons has not been effected

at the correct address of the petitioner and the respondent/landlord has

given the wrong address of the petitioner in the petition where the

summons were alleged to have been served. The learned Controller,

without considering the facts, as stated by the petitioner/tenant, has

passed an eviction order in respect of the suit property vide order dated

02.08.2010.

3. Aggrieved, the petitioner has preferred this petition.

4. Learned counsel for the petitioner has submitted that on facts it is

very much apparent on the face of the record, that the petitioner was

never served with summons in the eviction petition either by the

ordinary process or by registered A.D. post, which is a mandatory

requirement of section 25-B of the Act.

5. Learned counsel for the petitioner has further submitted that the

declaration of the ARC that valid service of summons has been effected

on the petitioner is contrary to the mandatory provisions of law laid

down by the Supreme Court and this Court.

RC.REV. No. 296/2010 P a g e 2 of 8

6. Learned counsel for the petitioner has vehemently argued that in

the memo of parties filed in the eviction petition two addresses were

provided by the respondent/landlord on which service was to be effected

on the petitioner/tenant. These addresses are: (i) 20/4, Shakti Nagar,

Delhi-110007 (Tenanted premises) and 11096, Dori Walan, East Part

Road, Karol Bagh, New Delhi-110005. The service report in respect of

Shakti Nagar premises was that it was found locked by the process

server on 10.11.2009 and in respect of Doriwalan address it was found

by him to be incorrect. However, the process server was told by

someone that the correct address of the petitioner/tenant was 11090

Doriwalan and not 11096 as mentioned above. Thereafter, the process

server has visited 11090, Doriwalan, Delhi where he met with a lady

Meena who talked with the petitioner on telephone about the summons

and the petitioner directed his employee Meena @ Meenu Bhatia to

receive the summons from the Process Server. Ms. Meena who was an

employee of the petitioner received the notice on his behalf and it bears

the signatures of „Meenu Bhatia‟. Thus any service purportedly effected

on such an address cannot be treated as valid service in the eyes of law.

7. Learned counsel for the petitioner has further submitted that the

service of the summons upon which the learned Controller has relied is

not trustworthy and cannot be treated as service in the eyes of law.

Therefore, it cannot be deemed that the petitioner was served in

accordance with law on 11 November 2009 and therefore his application

for leave to defend before the ARC cannot be treated filed beyond the

RC.REV. No. 296/2010 P a g e 3 of 8 period of limitation. Learned counsel for the petitioner has relied upon

the judgment in the matter of H.S.Gandhi Vs. Abha Arora, AIR 1983

Delhi 288, in which it is held that provisions of Order 5 Rule 15 of the

CPC can be pressed into service to treat the service of summons on an

adult member of the person sought to be served.

8. Further learned counsel for the petitioner has relied upon the

judgment delivered by Supreme Court in Manoj kumar Vs. Bihari Lal,

AIR 2001 SC 2176, para 11, wherein it was held that provision of law as

contained in section 25-B of the Act is a drastic measure for the eviction

of tenants particularly in a statute intended to provide protection to

tenants against arbitrary and whimsical action of unscrupulous landlords

for their eviction. Therefore, strict interpretation of the provision is

necessary.

9. Per contra learned counsel for the respondent/landlord has

submitted that the application for leave to defend has been dismissed by

the learned ARC on the ground that the leave to defend application has

filed beyond the period of limitation. By relying upon the judgment

delivered by the Hon‟ble Supreme Court in Pritpal Singh V/s Satpal

Singh through LRs, 2010 RLR 15 SC, in which it is held that the Act is

a specific Act and the provisions of Limitation Act are not applicable.

Further learned counsel for the respondent has relied upon the judgment

delivered by the Hon‟ble Supreme Court in Om Prakash V/s Ashwani

Kumar Bassi, 2010 (2) Rent Control Reporter Pg. No. 244 (SC), in

RC.REV. No. 296/2010 P a g e 4 of 8 which it was also held that delay of even a single day cannot be

condoned by the controllers.

10. Learned counsel for the respondent/landlord has submitted that in

the entire leave to defend application, the petitioner has not stated

anywhere that he does not have any relation with the property No.11096,

Doriwalan, East Park Road, Karol Bagh, New Delhi-5.

11. I have heard learned counsel for both the parties and perused the

record carefully. Learned counsel for the petitioner has contended that

in the eviction petition two addresses were provided by the

respondent/landlord on which service was to be effected on the

petitioner and both the addresses were wrong. When the process server

reached at 11096, Doriwalan, East Part Road, Karol Bagh, New Delhi-

110005 there he was told by someone about the correct address of the

petitioner herein was 11090 Doriwalan. Thereafter, the process server

reached there and found Ms. Meena who received the notice on behalf of

the petitioner/tenant after having telephonic instructions from the

petitioner/tenant. The report of the process server bears the signatures of

Ms. Meenu Bhatia.

12. Therefore, the contention of the counsel for the petitioner/tenant

cannot be believed that someone has thrown the summons near the shop

of the petitioner. As per report of the process server the summons were

properly handed over by the process server to Ms. Meena @ Meenu

Bhatia who received summons only after taking the telephonic

instructions from the petitioner/tenant. Address given by the RC.REV. No. 296/2010 P a g e 5 of 8 respondent/landlord in the application filed under Order 37 Rule 4 read

with Order 9 Rule 13 read with Section 151 of CPC, is the same address

i.e. 11090, Doriwalan, East Park Road, Karol Bagh, New Delhi, on

which the summons were served by the process server on 11.11.2009

and that fact is not disputed anywhere in the eviction petition by the

petitioner/tenant.

13. The application for leave to defend was filed on 27.11.2009.The

record shows that there was a valid service of the summons upon the

petitioner/tenant on 11.11.2009. From perusal of the record, it is also

evident that the application under section 25-B of DRC Act was not filed

before the Trial Court within the stipulated period of 15 days.

14. In Om Prakash V/s. Ashwani Kumar Bassi, AIR 2010 SC

3791, the Supreme Court while deciding the question of condonation of

delay in filing the leave to defend application has held that the Rent

Controller has no power to condone the delay. The Hon‟ble Supreme

Court has laid down the law as under:-

"Section 13B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with the dependent on him or her. The right has been limited to one application only during the life time of the owner.

Section 18A (2) of the aforesaid Act provides that after an application under Section 13B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent RC.REV. No. 296/2010 P a g e 6 of 8 Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.

XXX XXX XXX In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the petitioner‟s application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18A (2) thereof."

15. Keeping in view the law laid down by the Hon‟ble Supreme

Court, I am of the opinion that Section 25-B of the Act is a complete

Code by itself and other provisions could not, therefore, be brought into

play in such proceedings. In the instant case, the same principle would

apply having regard to the fact that the Rent Controller had not been

conferred with power to condone the delay even for one day. The Rent

Controller has rightly observed on submissions made on behalf of the

respective parties, which is reproduced as under:

"I find that as per the recorded statement of process server Sh. Bijender Singh, summons of this eviction petition were duly served on the „Agent‟ of the respondent on 11.11.2009. On enquiry, respondent has failed to explain as to how he got the summons or that who had received the summons of this eviction petition on behalf of the respondent. Respondent also did not make any submission on the said agent named Ms. Meenu Bhatia. He did not counter the service on these aspects. Further, as per sec. 25-B of DRC Act, if the acknowledgement purporting to be signed by the tenant or his tenant is received by the controller, then service may be declared as a valid service of summons by the controller.

XXX XXX XXX In the present case, name of the agent i.e. Ms. Meenu Bhatia has not been disputed by way of filing any application or counter affidavit. Besides that, registered A.D. with signatures also has been received back by this court."

RC.REV. No. 296/2010 P a g e 7 of 8

16. For the aforesaid reasons, the Rent Controller has dismissed the

leave to defend application being barred by limitation and has held that

the service of summons was proper on the petitioner/tenant.

17. Thus, the Trial Court has given a detailed and reasoned order

which does not call for any interference nor the same suffers from any

infirmity or erroneous exercise of jurisdiction.

18. The present petition is hereby dismissed accordingly. However,

there will be no order as to costs.

                                                     (S.L. BHAYANA)
                                                         JUDGE
February 15 , 2011




RC.REV. No. 296/2010                                     P a g e 8 of 8