Punjab Bearing Traders vs Mohammad Jameel Khan Lodhi
2011 Latest Caselaw 5510 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Judgment: 16.11.2011

+      RC. Rev. No. 32/2010


       PUNJAB BEARING TRADERS                  ..... Petitioner
                     Through: Mr. Satinder S. Gulati,
                              Advocate.
                versus

       MOHAMMAD JAMEEL KHAN LODHI          ..... Respondent
                   Through: Mr. Rajat Aneja, Advocate with
                            Ms. Shweta Singh and
                            Mr. Vibhav Jairaj, Advocates.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

  3. Whether the judgment should be reported in the Digest?
                                                       Yes
INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

18.9.2009 wherein the eviction petition filed by the landlord under

Section 14(1)(e) of the Delhi Rent Control Act (hereinafter

referred to as 'the DRCA) had been decreed; the application for

leave to defend filed by the tenant had been dismissed.

2. Record shows that an eviction petition seeking eviction of

the tenant under Section 14(1)(e) of the DRCA had been filed.

Summons in terms of the impugned order had been served upon

the defendant on 18.07.2009. Contention of the petitioner before

this court is that a perusal of the summons clearly shows that

there was a next date of hearing mentioned therein which was

noted as 08.09.2009; the tenant was under a bona fide impression

that he had to appear in court on 08.09.2009 which he did. This

had led to a confusion in his mind which had been deliberately

created which in turn amounts to a fraud. Learned counsel for the

petitioner has placed reliance upon the judgments of the Apex

Court reported in (2003) 8 SCC 319 titled as Ram Chandra Singh

vs. Savitri Devi & Ors., (2009) 13 SCC 569 titled as Rani Aloka

Dudhoria and Ors. vs. Goutam Dudhoria & Ors. as also another

judgment of the Apex Court reported in (2006) 7 SCC 416 titled as

Hamza Haji vs. State of Kerala and Anr. to support his submission

that the commission of a fraud on the court and suppression of

material facts are core issues which vitiate every solemn act;

fraud and justice never dwell together; the summons amounting to

a fraud, did not amount to a valid service; impugned order in

these circumstances not entertaining the application for leave to

defend of the tenant holding that it was filed beyond the period of

15 days which period was counted with effect from 18.07.2009

suffers from a clear infirmity.

3. It is submitted that this summons are even otherwise

defective as they were not in prescribed format which has been

prescribed in the third Schedule of the DRCA; there is a format

which does not mention any next date of hearing; in these

summons next date of hearing had been noted as 08.09.2009

which had led to the confusion as the defendant is a lay person.

Reliance has also been placed upon the judgment reported in

1996 RLR 71 tiled as Abdul Salam vs. Hans Raj to support his

submission that summons which are not in prescribed format do

not amount to a valid service. Further submission being that even

otherwise the bona fide requirement of the petitioner had not

been made out and this is clear from the perusal of the eviction

petition.

4. Arguments have been rebutted. It is pointed that the

application for leave to defend has not been filed within the

stipulated period; the averments made in the eviction petition are

deemed to be admitted and the landlord is entitled to a decree

forthwith; reliance has been placed upon the judgment of the Apex

Court reported in 2010 RLR 15(SC) titled as Pritpal Sigh Vs.

Satpal Singh to support this submission.

5. Record shows that the impugned order in no manner suffers

from any infirmity. The summons sent to the petitioner are in the

format which has been prescribed in the third Schedule of the

Delhi Rent Control Act. The name, description, place of residence

of the tenant had been mentioned in these summons; these

summons clear state that an eviction petition under section

14(1)(e) of the DRCA has been filed and the respondent/petitioner

is directed to appear before the controller within 15 days of

service thereof and to obtain leave of the controller to contest the

application for eviction on the aforesaid ground; in default the

applicant would be entitled at any time after the expiry of the

period of 15 days to obtain an order of eviction. It further states

that the leave to appear and contest the application may be

obtained on an application to the controller which to has be

submitted on an affidavit as referred to in Sub-Section 5 of

Section 25B; the date of the summons has been mentioned as

18.07.2009.

6. The summons are in the correct format and in strict

compliance of the requirements of the summons. Submission of

the petitioner that on the top of the summons the date of

08.09.2009 has been mentioned was in fact a fraud which had

been played upon him as this had led to confusion in his mind and

he had appeared only on 08.09.2009 is an argument clearly

without any merit; the next date of 08.09.2009 written on the top

of the summons states that it is the next date of hearing; that does

not take away the text of what is contained in the body of the

summons which has clearly noted the contents as (supra)

informing the tenant that he must on affidavit within 15 days of

the receipt of these summons file an application for leave to

contest the eviction petition which has been filed under Section

14( 1)(e) of the DRCA failing which the eviction petition shall

stand decreed in favour of the applicant/landlord. It is also an

undisputed fact that alongwith these summons the eviction

petition had also been served upon the petitioner as 11 pages had

been served upon the petitioner; this has also been noted by the

Trial Court. This summon sent cannot be said to be a fraud which

has been committed by the petitioner. The aforenoted judgments

relied upon by the petitioner in this context are thus wholly

inapplicable; the judgment of Abdul (supra) is also not

application. This was a case where the court had noted that in the

summons where two dates were required to be mentioned only

one date was mentioned; further the summons were incomplete as

the number of premises in question was not given; further the

eviction petition and site plan were also not delivered to the

petitioner alongwith the summons; the seal of the court was not

clear; facts of the said case are distinct and are not applicable.

7. Petition is without any merit; it is dismissed.

INDERMEET KAUR, J NOVEMBER 16 , 2011 rb