Shyam Kishore & Anr. vs Ganeshi Lal & Ors.
2012 Latest Caselaw 2485 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 29.03.2012
                               Judgment delivered on: 17.04.2012

+                     CM(M) 1341/2009


SHYAM KISHORE & ANR                                        ..... Petitioner
                 Through                  Mr. A.P.S. Ahluwalia, Sr.
                                          Advocate    with      Mr.      S.S.
                                          Ahluwalia, Advocate.
                      versus

GANESHI LAL & ORS                                       ..... Respondent
                               Through    Mr. G.L. Rawal, Sr. Advocate
                                          with   Mr.  Kuljeet      Rawal,
                                          Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 The petitioner is aggrieved by the fact that the trial Court has

placed reliance upon a judgment of a Bench of this Court reported as

Frank Anthony Public School Vs. Smt. Amar Kaur 1984 (6) DRJ 47 to

return a finding that in proceedings under Section 14 (1)(e) of the Delhi

Rent Control Act (DRCA), the period of 15 days for filing an

application for leave to defend by the tenant has to be counted from the

date of the second service; contention being that this judgment has not

followed the ratio laid down by a co-ordinate Bench of this Court in the

judgment of Kamal Bhandari Vs. Brig. Shamsher Singh Malhotra 20

(1981) DLT 380 wherein in similar facts in an eviction petition under

Section 14 (1)(e) of the DRCA, the Court had noted that the application

seeking leave to defend has to be filed within 15 days of the date of the

first service.

2 The counsel for the petitioner submits that in view of the

judgment of the Supreme Court reported as V (2011) SLT 649 Fida

Hussain & Others Vs. Moradabad Development Authority & Another as

also a Division Bench judgment of this Court reported as 180 (2911)

DLT 351 Bata India Ltd. Vs. Union of India, the subsequent co-ordinate

Bench of equal strength is bound by the decision of the first Bench;

contention being that the later judgment of Frank Anthony Public School

(supra) could not have held that the period of 15 days has to be counted

from the date of the second service when the ratio of Kamal Bhandari

(supra) was to the contrary.

3 Further contention of the learned counsel for the petitioner on this

count is that because of these different views expressed by the different

Benches of this Court, there is a confusion in the subordinate courts and

the matter should be rested by referring the issue to a larger Bench.

4 The judgment of Kamal Bhandari (supra) had been distinguished

in the case of Frank Anthony Public School (supra). The learned single

Judge in the later judgment of Frank Anthony Public School (supra) had

in para 24 distinguished the judgment on the ground that the reasoning

of Kamal Bhandari (supra) has been based on the premise that service is

to be effected only once and if there is a second service it is of no value;

the words in Section 25-B (3)(a) had not been highlighted. The

judgment of Frank Anthony Public School (supra) was delivered on the

premise holding that where there are two modes of service and both

have been executed, the second service cannot be ignored and the 15

days period had to be counted from the date of the second service. This

judgment of Frank Anthony Public School (supra) has been followed

thereafter consistently and was reiterated in the case of 46 (1992) DLT

356 Durga Devi Vs. S. Kumar. In this case, the Court in the context of

computing period of limitation for filing an application for leave to

defend had inter-alia noted as under:-

"Two modes of services are provided under Section 25(B) of the Act and if the respondent is served by both the modes, limitation would be calculated from the latter dated on which service was effected."

5 This view having been consistently followed by this Court right

from 1984 onwards, the trial Court had rightly noted that the period of

15 days for filing an application seeking leave to defend has to be

counted from the date of second service.

6     Petition is without any merit. Dismissed.



                                                  INDERMEET KAUR, J
APRIL 17, 2012
A