Ram Kishan & Sons vs Mohd Haroon Japanwala & Ors
2012 Latest Caselaw 1572 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on: 02.03.2012
                         Judgment delivered on:06.03.2012

+     RC.REV. 406/2011 & CM No.18722/2011

RAM KISHAN & SONS                                      ..... Petitioner
                         Through     Mr. A.S. Chandhiok, Sr.
                                     Advocate with Mr. Abhijat, Mr.
                                     Amit Mahajan and Mr. Bhagat
                                     Singh, Advs.

                                Versus


MOHD HAROON JAPANWALA & ORS          ..... Respondents
                Through Mr. Sandeep Sethi, Sr. Advocate
                        with Mr. K.R. Chawla and
                        Mr.Arvind Verma, Advs.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1. Order impugned before this Court is the judgment dated

12.07.2011 whereby the eviction petition filed by Mohd. Haroon

Japanwal (hereinafter referred to as the „landlord‟) against Ram Kishan

& Sons through its partner Sh. P.K. Khanna (hereinafter referred to as

the „tenant‟) had been decreed; the application seeking leave to defend

had been dismissed. The Court had returned a finding that there is a

delay of one day in filing the application for leave to defend and the

Rent Controller has no power to condone the delay; the application

seeking leave to defend could not be taken on record.

2. The petitioner is aggrieved by this Order. His submission is that

in fact service of summons had not been served upon the tenant in the

prescribed form. Attention has been drawn to the provisions of Section

25-B (2)(3) & (4) of the Delhi Rent Control Act (DRCA); submission

being that the service has to be effected upon the tenant in strict

compliance of the aforenoted procedure; this is as per the form

prescribed in the IIIrd Schedule of the DRCA; it is submitted that

admittedly in this case there is no service by registered A.D. and the

summons which have allegedly been served upon the tenant in the

ordinary manner also bears the signatures of one Mr. Rajender Prasad

who although an employee of the company was not duly authorized to

receive the summons on behalf of the tenant; attention has been drawn

to the report of the process server dated 22.07.2008 as also the

subsequent report dated 28.07.2008 which report had noted a valid

service of summons upon the tenant.

3. The application for leave to defend had been filed on 13.08.2008.

On 12.07.2011, an application had been filed by the tenant through his

Advocate (same Advocate who had filed the application seeking leave to

defend) wherein he had stated that even presuming that there is a delay

of one day, without prejudice to his rights, he had sought condonation of

delay of the aforenoted one day. It is in this background that the

impugned judgment had been passed.

4. The ARC has returned a fact finding that the summons had been

served upon the tenant on 28.07.2008; leave to defend has to be filed

within the stipulated period of 15 days which admittedly expired on

12.08.2008; leave to defend having been filed on 13.08.2008 suffers

from a delay of one day; the fact that there was a delay was also noted

in the averments made in the application filed by the tenant seeking

condonation of delay (dated 12.07.2011); submission having been noted

that the tenant in this case had himself admitted that there was a delay of

one day in filing the leave to defend. The ARC relying upon the

judgment of Prithpal Singh Vs. Satpal Singh (Dead) through its LRs. I

(2010) SLT 116 had noted that the ARC has no power to condone the

delay even of one day and since the application seeking leave to defend

has not been filed within the stipulated period of 15 days, it could not be

taken on record; the necessary corollary being that the eviction decree

followed in the hands of the landlord.

5. Vehement submission of the learned senior counsel for the

petitioner is that Rajender Prasad was not the duly authorized agent (as

is contemplated under Section 25-B (iii) of the DRCA) to receive the

summons on behalf of the tenant. Admittedly the tenant is a partnership

firm who is represented through his partner Mr. P.K. Khanna; service

has not been effected on Mr. P.K.Khanna; record also does not show as

to how the summons which were first taken by process server on

22.07.2008 wherein the process server had met Rajender Prasad, (he had

not served the summons on Rajender Prasad on that date) but on

subsequent date i.e. on 28.07.2008, the same Rajender Prasad had

accepted the summons on behalf of the tenant firm. This was not a valid

service. There is also no explanation as to why the ARC has not

recorded as a fact that the summons had been validly served upon the

tenant; this was his incumbent duty to do so; he has failed in its duty; for

this reason also, the eviction decree is liable to be set aside as the ARC

has failed to return a fact finding that the summons of eviction petition

had been duly served upon the tenant. To support his submission,

learned senior counsel has placed reliance upon a judgment of this Court

rendered in RCR No. 136/2011 dated 26.09.2011 Kanta Thapar Vs.Brij

Nandan where the summons not having been served personally upon the

tenant and having been served upon the daughter in law was rendered to

be not a valid service. Reliance has also been placed upon 27 (1985)

DLT 269 Subhash Anand Vs. Krishan Lal and Another; submission

being that in this case the summons has not been served upon the tenant;

summons were accepted by his wife; it was held that it was not a valid

service; contention being that the service effected on Rajender Prasad

was not a valid service. Further submission of the learned senior counsel

for the petitioner is that even otherwise, the Rent Controller is a „Court‟

within the meaning of Code of Civil Procedure (hereinafter referred to

as the „Code‟) and he has ample power to condone the delay even

presuming that there was a delay.

6. Arguments have been negatived.

7. Record has been perused. Section 25-B of the DRCA is a

summary procedure which had been inserted in the Statute by the

amendment of 1976. It is undisputed proposition that Section 25-B is a

complete Code in itself and the procedure contained therein has to be

strictly adhered to while dealing with such an eviction petition; in the

absence of strict compliance of this procedure a valuable right of one or

the other party would be effected. Section 25-B (2)(3)(4) of the DRCA

are reproduced herein a under:-

"(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."

7. A reading of the aforenoted provisions of law shows that the

mode of service prescribed is three fold. This Section 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.

8. 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.

9. This confusion had in fact been set at rest by a Bench of this

Court in the judgment reported in AIR 1983 Delhi 288 H.S. Gandhi Vs.

Abha Arora. In this case a similar question had arisen for decision. In

this case the service of the eviction petition filed under Section 14 (1)(e)

of the DRCA had been effected upon the son of the tenant; this was by

ordinary mode; there was also nothing on record to show that the

summons had been issued by registered A.D; the Court had noted that

when the summons are sent in the ordinary way, service can be served in

the manner provided under Order 5 Rule 15 of the Code. In this case the

tenant on the relevant date was on a deputation out of country and the

court had noted that even if the summons had been forwarded by the son

of the tenant on the same very day on which he received the same, there

is little livelihood of the tenant being able to get the requisite valid

service and to send back an affidavit seeking leave to defend within

stipulated period of 15 days. In this scenario mater had been remanded

back for reconsideration before the ARC. The Court had inter alia noted

as under:-

"The Controller is obliged, as I read the section, to order the issuance of summons in ordinary way as well as by registered post. If the tenant is served by either of the two ways then the service is deemed to be complete which would thereupon unable the tenant to apply for leave to contest the eviction petition. If the service is not affected by registered post then summons which are issued in the ordinary way may be served in the manner provided under Order 5 Rule 15 thereof."

10. Applying this test to the aforenoted factual scenario, it is clear

that the service upon the Rajender Prasad who was admittedly an

employee of the tenant was a valid service. In fact the service report

dated 22.07.2008 states that Rajender Prasad had met the process server

but he did not take the service as he had to take instructions from his

employer; on the second visit which was on 28.07.2008, the employee

Rajender Prasad had accepted the summons and the copy (the eviction

petition) which the Court had correctly noted was a valid service upon

the tenant; he obviously had taken instructions in this intervening

period.

11 Relevant would it be to state that even in the application seeking

leave to defend which was filed by the tenant on 13.08.2008, there is not

a whisper that the service had not been effected upon the tenant as per

procedure; this also does not find mention in the application filed by the

tenant through his Advocate on 12.07.2011 wherein he had sought

condonation of delay of one day in filing the application seeking leave

to defend; although this application had stated that this application was

being filed without prejudice to his rights yet the pleadings contained in

the application seeking leave to defend coupled with this application

dated 12.07.2011 leave no manner of doubt in the mind of the Court that

the tenant was satisfied with the mode of service which had been

effected upon him; he was never aggrieved that the service has not been

effected in the prescribed mode and that is why the leave to defend was

being filed belatedly. This was never his contention in the trial Court

and which is now the main thrust of his argument propounded before

this Court.

12 Strict compliance of the procedure contained in Section 25-B of

the DRCA had been made. This question is accordingly answered

against the tenant. Reliance by the learned counsel for petitioner upon

the judgment of Subhash Anand (supra) is misplaced; in this case while

receiving the registered A.D. card the wife had specifically appended a

note therein that her husband is on a business tour and will be back only

by the end of March 1982 and the summons will be delivered on his

arrival and till that time, time may be granted; this request had been

declined; in this scenario the court had noted that the service of

summons upon the wife is not a valid service.

13 The Apex Court in the case of Prithpal Singh (supra) had noted

that the ARC had no power to condone the delay of eight days in filing

the application seeking leave to defend.

14 In (2010) 9 SCC 183 Om Prakash Vs. Ashwani Kumar Bassi, the

Apex Court has reiterated that the ARC has no power to condone the

delay in the filing of an application for leave to defend. Relevant extract

of the observations of the Apex Court in this case are reproduced herein

as follows:-

The views expressed by the High Court also formed the subject matter of the decision in Prithipal Singh's case (supra), though in the context of the Delhi Rent Control Act, 1958, and the rules framed thereunder. This Court was of the view that Section 25-B of the Delhi Rent Control Act was 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 under Order 9 Rule 13 C.P.C.to recall an ex-parte order passed earlier.

14. Apart from the above is the view taken by this Court in Prakash H. Jain vs. Marie Fernandes [(2003) 8 SCC 431], where it was specifically held that since the Competent Authority under Section 40 of the Maharashtra Rent Control Act, 1999, was not a court but a statutory authority with no power to condone the delay in filing an affidavit and application for leave to contest, the Competent Authority had no other option but to pass an order of eviction in the manner envisaged under the Act.

15 In the present case, there was a valid service upon the tenant on

28.07.2008; the application seeking leave to defend having been filed on

13.08.2008 suffers from a delay of one day. The ARC has no power to

condone this delay; even of one day. The application seeking leave to

defend not having been filed within the stipulated period of 15 days, the

ARC had rightly noted that the application for leave to defend could not

have been taken on record; as a necessary corollary, the eviction decree

followed in favour of the landlord.

16 The impugned judgment in no manner suffers from any infirmity.

Petition is without any merit. Dismissed.

INDERMEET KAUR, J MARCH 06, 2012/A