Delhi High Court
Dayal Kishan Phadiyal vs Sukhmal Jain on 12 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC Rev. No. 268/2014 & C.M.Nos.13093-94/2014
% 12th August, 2014
DAYAL KISHAN PHADIYAL ..... Petitioner
Through Mr.Amit Jain, Advocate.
versus
SUKHMAL JAIN ..... Respondent
Through counsel for the respondent
(appearance not given)
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. On the first call, the matter was passed over on the request of the
petitioner that the counsel is led by a senior counsel and which senior
counsel is arguing in another court. It was stated that the matter be passed
over as the senior counsel will be free in a short time. The matter was hence
passed over, but, even on the second call after one hour of the pass over,
RC.Rev.268/2014 Page 1 of 5
only one another counsel appears for the petitioner and again prays for a
pass over on the ground that the senior counsel is held up yet in another
case. For this reason that the case cannot be kept on hold at
convenience, counsel for the respondent vehemently opposes any further
pass over, and therefore I have directed the counsel appearing for the
petitioner to argue the case. Counsel for the petitioner, however states that
he cannot argue the case.
2. A reading of the impugned order dated 16.4.2014 shows that the same
has dismissed an application under Order 37 Rule 4 Code of Civil
Procedure, 1908 (CPC) filed by the petitioner/tenant in a bonafide necessity
petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958
(hereinafter referred to as 'the Act').
3. The eviction petition for bonafide necessity was decreed ex-parte as
per the order dated 18.12.2012 as the petitioner/tenant did not appear inspite
of service. As per Section 25B(4) of the Act, in case a leave to defend
application is not filed within 15 days of service, the contents of the eviction
petition are deemed to be admitted and an eviction petition decree follows.
RC.Rev.268/2014 Page 2 of 5
4. In the application for setting aside the ex-parte decree under Order 37
Rule 4 CPC filed by the petitioner/tenant, it is stated that the
petitioner/tenant was not in town on 27.11.2012 when the summons are said
to be tendered by the process server because the petitioner/tenant had gone
to his village in Uttrakhand to meet his ailing father.
5. I may note that the Supreme Court in the judgment in the case of
Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 has
held that there cannot be condonation of delay of even one day in filing of a
leave to defend application, and therefore most of the discussion in the
impugned judgment discussing the aspect of condonation of delay is not
relevant in view of the ratio of the judgment of the Supreme Court in the
case of Prithipal Singh (supra).
6. The only aspect in this case is whether the petitioner/tenant was
served in the eviction petition. In this regard, the trial court has noted the
relevant facts in paras 12 and 13 of the impugned order, and which read as
under:-
" 12. Perusal of the file would show that eviction order
was passed by Ld. Predecessor of this Court on
RC.Rev.268/2014 Page 3 of 5
18.12.2012. As per which, the respondent was deemed to
have been served by registered post on 23.11.2012 and
despite the expiry of 15 days of the stipulated period, no
leave to defend was filed on behalf of the respondent.
13. It is further mentioned in the above said order that
notice sent to respondent by ordinary process received
back with report of unavailability of respondent.
However, notice sent by the registered post was served as
the AD card was received to the Court having been
received on 23.11.12. Perusal of the report on the
process-server on the process shows that there is
endorsement on the same regarding non availability of
respondent on 27.11.12. However, AD card which was
received to the court, the date of receiving is mentioned
as 23.11.12. The genuineness of the said AD card has
not been disputed. The address of respondent is also not
disputed. Presumption under Section 27 of General
Clauses Act is also attached in matter of service through
registered post." (underlining added)
7. The aforesaid paras make it clear that the petitioner/tenant was
deemed to be served by registered AD post on 23.11.2012 and hence the
non-availability from 27.11.2012 is not relevant. The genuineness of the
AD card as also the address of service of the present petitioner was not
disputed. Therefore, once the petitioner/tenant was served, and the order of
eviction was passed on 18.12.2012, the eviction order could not be set aside
RC.Rev.268/2014 Page 4 of 5
by an application under Order 37 Rule 4 CPC because there is no entitlement
of having delay condoned, even of one day, in view of the ratio of the case
of Prithipal Singh (supra).
8. Though at the conclusion of this judgment, a new counsel for the
petitioner appeared and she argued that petitioner's signatures do not appear
in the AD card, however, on a query put to this counsel, she states that it is
not pleaded in the application for setting aside the ex-parte decree that
signatures on the AD card are not of the petitioner/tenant. Therefore, any
argument beyond pleading cannot be looked into by this Court.
9. Dismissed.
VALMIKI J. MEHTA, J.
AUGUST 12, 2014
KA
