Mohd Shafiq vs Mst. Bilquis Begum
2014 Latest Caselaw 3976 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CM(M) No.755/2013

%                                                  28th AUGUST, 2014

MOHD SHAFIQ                                                ......Petitioner
                         Through:      Mr.Vivek Kumar, Advocate.

                         VERSUS

MST. BILQUIS BEGUM                                        ...... Respondent

                  Through:             Mr.Satya Prakash Gupta, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India, at the

request of learned counsel for the petitioner is treated as a petition under

Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to

as 'the Act') to challenge the orders of the Additional Rent Controller dated

05.2.2013 and 16.5.2013 decreeing the bonafide necessity eviction petition

under Section 14(1)(e) of the Act on account of non-filing of the leave to

defend application by the petitioner/tenant. Both the orders dated 05.2.2013

and 16.5.2013 are reproduced below:-

Order dated 05.2.2013

" The notice of the present petition has already been served upon the respondent through his brother on 10/09.2012. The notice to respondent was also served through Regd. Post. Despite service, the respondent has failed to file application for leave to defend under section 25-B of Delhi Rent Control Act for leave to appear and contest the evictin petition within stipulated period of 15 days.

This court heard the final arguments on behalf of the petitioner and perused the material available on record.

This is petition under section 14(1)(e) r/w section 25-B of Delhi Rent Control Act filed by the petitioner against the respondent. This court perused the petition and found that in the present petition, the petitioner has pleaded all the essential ingredients of section 14(1)

(e) of Delhi Rent Control Act, therefore, the averments made in the petition are deemed to be admitted by respondent. Accordingly, an eviction order is passed in favour of petitioner and against the respondent in respect of one shop situtated on the ground floor and forming part of property No.4407, 4408 and part of 4406, Shah Gnaj, Gali Shahtara, Ajmeri Gate, Delhi-110006, as shown in red colour in the site plan Ex.X. However, the eviction order shall not be executable before expiry of 6 months as stipulated under section 14(7) of Delhi Rent Control Act. File be consigned to the record room"

Order dated 16.5.2013 "Again, adjournment sought for submitting arguments. Sufficient opportunities have already been granted. Therefore, I am not inclined to give any further opportunity.

Arguments heard. It is submitted that respondent was not served with summons and therefore, eviction order dated 05.2.2013 be set aside.

First of all, applicant has failed to satisfy this court as to how the provision of Order 9 Rule 13 CPC is applicable on the case in hand. Moreover, it is observed that only bald allegations have been mentioned in the application qua non service of summons on the

respondent. Apart from taking plea that applicant is not known to Mustaq Ali, who accepted the ordinary process tendered by process server, there is nothing on record to show that the applicant has no connection with aforesaid person in nay capacity, specially, when specific report has been given by the process server that summons was accepted by brother of the respondent after contacting the respondent on telephone. Moreover, application is silent about the service effected through registered post. It is found that signatures of respondent put on the acknowledgment card sent back to the court are quite similar to the signatures put by respondent on this application. Moreover, the decision of the High Court reported as 176 (2011) LT 717 clearly laid down that respondent, after passing of eviction order in absence of application for leave to defend, has remedy available u/o 37 Rule 4 CPC. Even otherwise, considering this application as one filed u/o 37 Rule 4 CPC, it is seen that it is silent about the grounds on the basis of which leave to defend can be granted to the respondent.

In view of this, I do not see any merit in the application and same is ordered to be dismissed.

File be consigned to record room."

2. A reading of the aforesaid orders shows that though the application

under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) has been

held to be not maintainable, however, that is not correct because when the

issue is that a person is not served at all, then, the issue is not of a

condonation of delay for filing of the leave to defend application but passing

an eviction decree without service of the tenant, and in which circumstances

Order 9 Rule 13 CPC will lie.

3. Accordingly, this petition is treated as a challenge to both the orders

which have been reproduced above. The only issue in this case is whether

the petitioner/tenant was or was not served in the eviction petition.

4. The petitioner/tenant was served by registered post AD card

containing the signatures of the petitioner/tenant which are on the record of

the Additional Rent Controller. Though the petitioner/tenant denies his

signatures on the AD card, it is noted that the registered post article was

addressed to the correct address of the petitioner/tenant viz at the tenanted

premises. It is not the case of the petitioner that except the petitioner

someone else was at the tenanted premises. Once that is so and the

signatures appearing on the AD card of the petitioner are similar to the

signatures on the application filed for setting aside the ex-parte decree as

observed by the court below, I do not find any illegality in the impugned

orders decreeing the bonafide necessity petition. As per Section 25B(4) of

the Act on non-filing of a leave to defend application within 15 days of

service the contents of the eviction petition are admitted and a decree is

consequently passed.

5. I may at this stage refer to an important fact that in the entire

application under Order 9 Rule 13 CPC, petitioner/tenant has only made an

averment with respect to non-service because of Mustaq Ali not being the

brother of the petitioner who has received the ordinary summons, but there is

no denial that the AD card does not contain the signatures of the

petitioner/tenant.

6. In view of the above, there is no merit in the petition, and the same is

therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 28, 2014 KA