Dharampal & Anr vs Meena Sharma
2012 Latest Caselaw 1352 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment: 28.02.2012

+                  RCR No. 61/2010 & CM No.1045/2012

DHARAMPAL & ANR                                          ..... Petitioner
                         Through      Mr. Kirti Uppal, Sr. Advocate
                                      with Mr. Rakesh Kumar Dudeja,
                                      Adv.
           versus
MEENA SHARMA                                     ..... Respondent
                         Through      Mr. N.N. Anand, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The judgment impugned before this Court is dated 18.12.2009.

The eviction petition filed by the landlord had been decreed; the

application seeking leave to defend which had been filed by the tenant

on 18.03.2009 was declined to be taken on record as the Court was of

the view that it was not filed within the stipulated period of 15 days of

service which in this case the Court had noted to be as 08.10.2008. The

service of 08.10.2008 was admittedly a service by affixation.

2 The contention of the petitioner in the trial Court was that the

summons had not been duly served upon him and that is why the

application seeking leave to defend could not be filed in time.

3 Record shows that on 02.06.2008 summons were directed to be

issued under Schedule III of the Delhi Rent Control Act (DRCA) for

25.09.2008. On 25.09.2008 notice was again ordered upon the

respondent under Schedule III of the DRCA; the report of service of the

earlier summons sent by ordinary process and registered A.D. had come

back with the remark that premises were found locked. On 25.09.2008,

notice by way of affixation was also ordered. Record further shows that

the Court had noted that the service on the respondent by way of

affixation had been validly effected. There is also no dispute that the

service was not effected through the other two modes of service i.e. by

ordinary process and registered post; report of service on the registered

A.D. envelope had come back with the remarks that the premises are

lying locked. The trial Court was of the view that this is a valid service

and application seeking leave to defend not having been filed within the

stipulated period of 15 days from 08.10.2008, the eviction petition had

accordingly been decreed in favour of the landlord.

4 Counsel for the petitioner is aggrieved by this order; his

submission is rightly bordered on the ratio of the judgment reported in

Prithipal Singh Vs. Satpal Singh (Dead) through its LRs. (2010) 2 SCC

15 wherein the Apex Court has noted that Section 25-B of the DRCA

which is contained in Chapter II-A and which had been inserted by the

Act of 18 of 1976 is a complete Code in itself; this special provision had

been introduced by the Legislature for summary trial of certain

applications filed under the Rent Act.

5 Section 25-B (2)(3)(4) of the DRCA are reproduced herein a

under:-

"25-B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.- (1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14, or under section 14-A, or under Section 14-B or under Section 14-C or under Section 14-D shall be dealt with in accordance with the procedure specified in this section.

(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.

(3) (a) The Controller shall, in addition to, an simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the

summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain.

(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.

(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the application shall be entitled to an order for eviction on the ground aforesaid."

6 A reading of the aforenoted provisions of law shows that the

mode of service prescribed is three fold. This Section i.e. Section 25-B

postulates that the summons can be sent either by ordinary way as

provided in sub-Section 2; it is also required that the summons may be

sent by registered post as provided in sub Clause 3 (a) as also by

publication in a newspaper. It is only when the summons are sent by a

registered post that the "acknowledgement" should be signed by the

tenant or by his agent. The word "acknowledgement" as occurring in

Section 25-B (3)(b) has reference to the words "acknowledgement due"

occurred in the previous sub-clause i.e. sub-clause (3) (a). This

"acknowledgement" referred to in sub-clause 3 (b) is an

acknowledgement which is sent along with the registered post; the word

"acknowledgement" referred in sub-clause 3 (b) is not the

acknowledgment of summons issued under sub-Section 2. Sub-section

4 of Section 25-B in fact settles the matter beyond all doubt; use of the

words „in the ordinary way‟ clearly implies the manner in which service

is to be effected.

7 It is thus clear that the service can be effected upon the tenant

either by ordinary way or by registered post; either of two modes of

service would be a complete service and whereupon the tenant would

then be required to file his application for leave to defend within the

stipulated period of 15 days.

8 It is not in dispute that in the instant case service has not been

effected by either of the two modes as prescribed in IIIrd Schedule of

the DRCA; the summons could not be served either by the ordinary

process or by registered A.D.; affixation is admittedly not a mode of

service which is provided in Section 25-B which is a complete Code in

itself. In these circumstances, the ARC holding that the service by

affixation was a valid service has clearly committed an illegality; this is

liable to be cured. Affixation is admittedly not a mode of service as

described by Section 25-B which deals with the special class of

landlords including those class of landlords who have filed an eviction

petition under Section 14 (1)(e) of the DRCA. The tenant not having

been served as per Schedule III of the DRCA, the impugned judgment

holding otherwise is accordingly set aside.

9 Reliance by learned counsel for the respondent upon the

judgments reported in JT 1996 (1) SC 669 State of Madhya Pradesh Vs.

Hira Lal & Others, 2010 (2) RCR 542 Delhi Ajay Ahuja Vs. M/s

Subhiksha Trading Services Ltd. and Vol VI 2007 SLT 442 SC C.C.

Alavi Haji Vs. Palapetty Muhammed and others is misplaced; these

were all under different statutes and not under the Rent Control

Legislation. Reliance by learned counsel for the respondent upon the

judgment reported in Vol 63 (1996) DLT 845 S. Mohinder Pal Singh Vs.

Uttam Kaur Puri is also inapplicable; this was a case where service had

been effected by publication which is not so in the instant case. Reliance

upon AIR 1989 SC 630 M/s Madan & Com. Vs. Wazir Jaivir Chand is

also misplaced; this was on the applicability of Section 27 of the

General Clauses Act; in this case also, the question which had arisen for

decision was as to whether a presumption of service can be drawn under

Section 27 of the General Clauses Act; the argument of learned counsel

for the respondent that in this case also a presumption of service should

have been drawn against the tenant is an argument bereft of force; as

noted supra Prithipal Singh (Supra) has enunciated the legal position

qua this special class of landlords; the procedure prescribed under

Section 25-B of the DRCA has to be strictly followed and as noted supra

these are three modes of service prescribed therein; this intent of the

legislature has to be strictly complied as the repercussions are also hard;

if a valid service is noted qua the tenant and the application seeking

leave to defend is not filed within the stipulated period of 15 days, the

landlord will automatically get a decree of eviction. The strict adherence

to the procedure as prescribed in Section 25-B of the DRCT thus has to

be adhered to. Rule 23 of the Delhi Rent Control Rules which deals with

the applicability of the provisions of the Code of Civil Procedure to rent

matters has also been excluded by the Apex Court in Prithipal Singh

(Supra).

10 The result of the aforenoted discussion is that the impugned

judgment is set aside. Since there was no valid service in terms of

Schedule III of the DRCA upon the tenant, the decree of eviction could

not have followed. The tenant/petitioner is now permitted to file his

application seeking leave to defend within 15 days from today. Advance

copy of the same shall be furnished to the learned counsel for the non-

applicant.

11    Parties to appear before the ARC on 16.03.2012.

12    With these directions, petition disposed of.



                                             INDERMEET KAUR, J
FEBRUARY 28, 2012
A