M/S. Gajanand Harishankar vs Col. (Retd.) Ajai Singh Virk
2012 Latest Caselaw 5498 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                  R.C.REV. 333/2012

                                     Date of Decision: 13.09.2012

M/S. GAJANAND HARISHANKAR              ......Petitioner
                 Through: Mr. Jagdeep Anand, Adv.

                               Versus

COL. (RETD.) AJAI SINGH VIRK           ......Respondent
                    Through: Mr. Sanjeev Sachdeva, Sr.
                             Adv. with P.S. Khandelwal
                             and Ms Priyam Mehta, Advs.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The present revision petition has been filed under Section 25B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act) against the order dated 30.04.2012 passed by the ld. Rent Controller, Saket Court, New Delhi, wherein the leave to defend application, filed by the petitioner-tenant herein, was dismissed, as being barred by time, and accordingly an order for eviction was passed in favour of the respondent-landlord.

2. The facts of the case are that, the respondent is the co-owner of property no. C-204, Defence Colony, New Delhi (hereinafter referred to as the "the tenanted property"). The tenanted property was first let out by the respondent's mother Mrs. Shiv Darshan Virk

vide letter dated 28.03.1963 with effect from 13.04.1963. The mother of the respondent died in 1965, leaving behind two minor sons (one of whom is the respondent) and one minor daughter. The respondent filed a petition u/s. 14(1) (e) of the Act in May 2011, claiming possession of the tenanted property on the grounds that he had retired from army and needs the suit premises for his residence, since he had no place to live in Delhi and that, he is currently residing in Jalandhar with his step-mother, where there is paucity of space.

3. The Ld. Rent Controller (hereinafter referred to as "RC") issued summons to the petitioner returnable for 06.06.2012, which was not received back. The Ld. RC subsequently directed the issuance of fresh summons by both ways, as per Schedule III of the Act and through courier agency. The report of the ordinary service was received back on 14.07.2011 that the servant of the petitioner refused to accept the summons. However the report of the courier agency stated that no person with the name of the petitioner was available at the given address. Accordingly, the RC again directed issuance of fresh summons by both ways for 19.08.2011. The petitioner was also directed to be served by way of affixation. The petitioner was served by way of affixation on 26.07.2011. Summons sent through registered post was received back with the endorsement "refused".

4. On 18.08.2011, the Petitioner filed an application for leave to contest the eviction petition and on 19.08.2011, an application u/s 5 of the Limitation Act. The petitioner stated in the application that from 27.07.2011 to 15.08.2011 they were out of station and gained knowledge of summons only when they returned on 15.08.2011. The petitioner immediately contacted his Counsel and filed applications dated 18.08.2011 and 19.08.2011. The Ld. RC dismissed the applications vide order dated 30.04.2012 on the ground that the issuance of summons was complete as on the day when the summon was served by affixation and registered post was received back with the endorsement "refused", and that he had no power to condone the delay. He also cited a case decided by this Court in RC. REV No. 296/2010 in Aster Publishing vs. Niwas Aggarwal and Ors wherein it was held that:-

"15. Keeping in view the law laid down by the Hon'ble Supreme Court, I am of the opinion that Section 25B 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 the power to condone the delay for even one day"

5. The impugned order is challenged by the petitioner primarily on the ground that it was not served of the summons in the manner as prescribed in Section 25 B of the Act and that, there was no mode

of service by affixation prescribed under the provisions of Section 25B of the Act.

6. There is no dispute with regard to the proposition that Chapter IIIA of the Act has a separate set of procedure with respect to certain applications made under the Act, through summary trial. This has been repeatedly reiterated by the Apex Court that Section 25B is a Code in itself and the procedure prescribed therein has to be strictly adhered to, as the non compliance thereof has serious repercussions and implications. Further, this being a separate and specific law, the general rules of law regarding mode of service provided in CPC would not be applicable to the summary trial of petitions under Section 14(1)(e) read with Section 25B of the Act.

7. Having regard to the controversy that was raised, the Trial Court record was requisitioned and even the officials of the Trial Court, responsible for the issue of processes, were also called for certain clarifications. It is seen that on the first date of receipt of eviction petition on 05.05.2011, summons were ordered to be issued by both the modes by the Rent Controller as per schedule III of the Act, to the tenant on filing of PF and registered cover, as also through approved courier for 06.06.2011. Before proceeding further, it may be noted that issue of process through courier is not a recognized or prescribed mode of service under Section 25B of the Act. The record shows that process was issued only by ordinary process for 06.06.2011. The notice could not be issued by registered

envelope because of some objection in the postal stamp. This is explained by the official of the Court of ARC. On the next date i.e. on 06.06.2011, the summons having not received back, the notice was issued to the Incharge of the Process Serving Agency seeking his explanation. In the meantime, fresh summons were ordered to be issued in the same manner by both ways i.e. by registered cover as well as by ordinary mode and also again through approved courier for 06.07.2011. The records show, and it is also confirmed by the Court official, that summons were issued only by ordinary process for 06.07.2011 and not by registered cover on account of non filing of the registered cover by the respondent/landlord. The Rent Controller being on leave from 06.07.2011 to 13.07.2011, the matter was listed before him on 14.07.2011 when the following order was passed:

"Pr: Petitioner with Counsel.

Summons issued to the respondent received back unserved. The report on the ordinary process says that the servant of respondent refused to accept the summons. However, the courier report says that there is no person with the name of respondent at the given address. It is, therefore, clear that respondent is deliberately evading the service.

Issue fresh summons as per schedule III of DRC Act to the respondent on filing of PF/RC for 19.08.11.

Respondent be served by way of affixation.

SCJ cum RC (South) Saket Courts/New Delhi/14.07.2011."

8. The summons issued by ordinary process for 06.07.2011 was returned with the report of the petitioner/tenant being out of station on the visits of the process server on 13.06.2011, as also on 04.07.2011. The summons issued by ordinary process for 19.08.2012 was returned with the report of affixation dated 26.07.2011.

9. The summons issued by registered post for 19.08.2011 was returned with the report of refusal on 19.07.2011. From the record it is seen that this was the same envelope which was filed for issue of summons for 06.06.2011 and was lying under objection and was issued only on 18.07.2011 and was returned with the report of refusal on the next date i.e. on 19.07.2011. On being asked by the Court official for clarification, he could not produce any record as regard to the receipt of the registered envelope or issue of the same by him. He stated that it may be that the landlord had taken himself and got the same issued. He, however, explained that no summon was issued by registered post for 06.06.2011 and 06.07.2011 as the requisite steps were not taken.

10. When the Rent Controller had recorded on 14.07.2011 that the summons issued were received unserved, it was only the ordinary process which was returned by that time since the registered envelope, which was having the postal stamp of 19.07.2011 and

endorsement of refusal, was not returned so far. In his order of 14.07.2011, the Rent Controller has recorded that the servant of the petitioner/tenant refused to accept the summons, whereas report of the courier was that there was no person by the name of the petitioner/tenant at the given address. In these inconsistent reports and there being no report before him of the registered cover, he could not have recorded the petitioner/tenant to be evading service. It was because of his not being satisfied of the reports of the process server and the courier, that he ordered for issue of fresh summons by both the modes again for 19.08.2011. It is noted that the Controller seems to have overlooked his previous order of seeking appearance of Incharge Process Agency for his explanation.

11. Though, there was a presumption of service of process on the addressee, when there was report on envelope with the remarks of refusal from the postal department, but, the presumption being rebuttable and entailing serious consequences, the Controller had to be more cautious. In this case as is noted above, there was no compliance of the order of Controller by respondent/landlord for issue of summons by registered cover for 06.06.2011, as also for 06.07.2011, and the registered cover, purported to be sent on 18.07.2011, was returned on the very next date i.e. on 19.07.2011 with the endorsement of refusal. I am not persuaded to draw presumption of service of the summons by registered post, upon the petitioner/tenant. There is no mention in the record maintained by

Court staff,for the issue and receipts of summons, for any of the dates to show that the registered covers were submitted by the respondent. There is also no mention in any of the Court proceedings regarding the receipt of returned registered envelope by the Court on 19.07.2011 or on any other date.

12. Though, there is no requirement of examination of the Postman concerned to prove the tender and refusal of the registered envelope, but, having regard to the material available on record before him, the Controller was expected to have asked for some more evidence, either that of statement of the concerned Postman or at least a usual certificate from the post office. Further, the service by affixation, cannot be taken to be as a proper mode of service upon the petitioner. Though it was neither desired nor required for this Court to dwell into all that is discussed above, but having seen that a very casual approach is being taken by the Controllers, as in this case, being unmindful of the serious repercussions in such matters, I had to labour to call for Trial Court record and even the Court officials for clarifications and explanations and without which, I would not have been able to arrive at my views as indicated above.

13. In view of my above discussion, I am of the considered view that the learned Controller seemed to have erred in recording service of petitioner by affixation and also by refusal, respectively on 26.07.2011 and 19.07.2011. This has caused serious injustice to the petitioner. Consequently, the impugned order is set as ide. The leave

to defend filed by the petitioner shall be taken on record. Both the parties shall appear before the Court of Rent Controller on 25.09.2012 who shall dispose the leave to defend application of the petitioner as per law, uninfluenced by this order and the fact of petitioner having approached this Court. The petition stands disposed accordingly.

M.L. MEHTA, J.

SEPTEMBER 13, 2012 awanish