Delhi High Court
Salazar Luis Anthony Marques ... vs Mohd. Haroon Japanwala & Ors. on 1 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on :20.03.2014
Pronounced on :01.10.2014
+ RC.REV. 374/2013, CM Nos.15852/2013 & 1516/2014
SALAZAR LUIS ANTHONY MARQUES (SINCE DECEASED)
THR LRS. ..... Petitioner
Through: Mr. Abhinav Vashisht, Sr. Adv.
with Mr. Abhinay, Adv.
Versus
MOHD. HAROON JAPANWALA & ORS. ..... Respondents
Through: Mr. Sandeep Sethi, Sr. Adv. with
Mr. Mr. Anand Shanker Jha, Adv.
for R-8
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
1. The present revision petition filed under section 25-B(8) of the Delhi
Rent Control Act (the "Act") assails an order dated 12.08.2013 passed
by the Learned Additional Rent Controller, New Delhi whereby the
eviction petition was allowed and consequently an eviction order was
passed against the present petitioner .
2. The brief facts of the case are that the premises in question is a shop
bearing No. G-41, Marina Arcade, Connaught Circus, New Delhi. The
respondent ( the "landlord") filed an eviction petition under section
14(1)(e) read with Section 25B of the Act on the ground that he
required the tenanted premises to establish his son‟s business in a
RC. REV 374 of 2013 Page 1 of 31
more suitable location; that the son presently occupied a shop in
Aurobindo Market which because of its small size and location was
not commercially viable; that the son was dependent on him to open a
shop in a more suitable location and that the tenanted premises was
most suitable for his requirement. There is no dispute as to the
landlord-tenant relationship between the parties and that the tenant has
been paying a monthly rent of Rs 732/- excluding all incidental
charges to the landlord. Acknowledging that a notice of the
proceedings was received which was left in his office by the Process
Server on 31.7.2008, the tenant - Mr. Salazar Luis Anthony Marquez,
filed an application for leave to defend on 18.8.2008. The tenant
passed away during the pendency of the proceedings and his legal
representatives, the present petitioners were brought on record. His
widow-present petitioner No.1 moved two applications dated
14.01.2010 and 01.05.2013 under section 151 CPC for bringing on
record the duly attested copy of the affidavit dated 18.08.2008 which
had been filed by the tenant. The affidavit attested by the Oath
Commissioner was required to be filed alongwith the application
seeking leave to defend, under section 25 B(4) of the Act. The former
application of 14.01.2010 contended that the application filed by the
deceased tenant under section 25-B(4) and (5) of the Act,
inadvertently did not contain the attestation of the Oath Commissioner
yet got filed, despite the clerical error, through the counsel
representing the tenant. It was submitted that the error was on the part
of the counsel for filing it without the Oath Commissioner‟s
attestation. Therefore, the tenant should not suffer on account of
RC. REV 374 of 2013 Page 2 of 31
negligence of the counsel. In the second application dated 01.05.2013,
filed on 03.05.2013 the applicant reiterated the reasons mentioned in
the first application and further submitted that non-attestation of the
affidavit by the Oath Commissioner was a curable defect which could
be allowed by the Court by exercising its inherent power under
section 151 of the Code of Civil Procedure, 1908 (CPC). It was
submitted that under Section 7 of the Oaths Act, 1969 no proceedings
could be invalidated simply because of omission of oath or such
irregularity; that the absence of mentioning the name of the Notary or
the absence of stamp and seal of the Notary in the application dated
18.8.2008 could not be considered as an omission which was fatal to
the application and case of the tenant. The learned counsel for the
tenant had argued that the non-attestation of the affidavit by the Oath
Commissioner was curable and not a fatal defect. In furtherance of
this point, the counsel relied on Section 7 of the Oaths Act and
Section 139 of the CPC. The counsel further relied on judgments to
show the Court that the affidavit of Mr. Salazar should be taken on
record despite its curable defect. The counsel argued, before the Trial
Court, that if the application requesting the affidavit to be taken on
record is rejected, there would be substantial injustice to the tenant,
especially when Court is vested with the power to cure a defect, which
the tenant believes to be curable in nature, chooses not to exercise
such power. The counsel for the tenant referred to section 83(1) of
Representation of People‟s Act, 1950 to further contend the Court the
nature of the defect an affidavit not having the required attestation.
The learned counsel submitted that the judgment of Vidya Sagar v.
RC. REV 374 of 2013 Page 3 of 31
Shakuntala Devi1 wherein the Court held that non-attestation of
affidavit was not a curable defect was misplaced.
3. The Trial Court noted that the question for consideration before the
Court was the treatment of an affidavit lacking the attestation of the
Oath Commissioner. The impugned order took note of the
abovementioned judgment, which held that there was a fundamental
difference between the lack of verification of affidavit and filing a
defective affidavit; that in a situation where verification of affidavit
was defective, an opportunity can be granted for rectification of the
defect, but filing of unattested affidavit cannot be said to be a
technical defect or an irregularity in view of the provision of section
25 B(4) and (5) of the Act. The Trial Court held that the law required
the application seeking leave to defend to be accompanied with an
affidavit and it had been so held by this Court in Vidya Sagar (supra)
that lack of attestation would mean the absence of an affidavit being
filed with the application. The landlord‟s contentions were (i) that the
tenant had failed to file an affidavit as required by law alongwith the
application seeking leave to defend and (ii) that the tenant was barred
by limitation as the application was not filed within the statutory
period of 15 days. The counsel for the landlord relied on Prithi Pal
Singh v. Sat Pal Singh2 in support of this argument. The Learned
ARC relied on the abovementioned judgment to hold that the power
1
1992(22) DRJ 123
2
(2010)2 SCC 15
RC. REV 374 of 2013 Page 4 of 31
of the Rent Controller does not allow him to condone even one day‟s
delay in filing the leave to defend application.
4. The Trial Court held that the affidavit filed by the tenant failed to meet
the prescribed requirement under the Act and that the application was
not filed within 15 days of the service of summons. Therefore, the
applicant was not allowed to file any attested affidavit subsequently.
Based on these reasons, the Trial Court rejected the leave to defend
application and passed the eviction order.
5. In this revision petition, Mr. Abhinav Vashisht, the learned Senior
Advocate for the tenant contends that (i) the Trial Court erred in
holding that the tenant had not filed the leave to defend application
within the statutory period of 15 days; (ii) that the Trial Court was
wrong in holding that the lack of attestation by the Oath Commissioner
is not a curable defect; (iii) reliance on Vidya Sagar (supra) by the
Trial Court was misplaced and (iv) that there was no effective service
of summons as mandated by the Act which the Trial Court failed to
take note of.
LIMITATION
6. He argued that the application seeking leave to defend was filed
well within the statutory period of 15 days from the date of the
summons being served upon the tenant. The learned counsel
referred to sequence of dates and events which he submits are vital
in deciding the question of limitation. The eviction petition being
Eviction Petition No. 20 of 2009 dated 12.05.2008 was filed by the
RC. REV 374 of 2013 Page 5 of 31
respondent/ landlord against the tenant, late Mr. Salazar Luis under
section 14(1)(e) read with section 25B of the Act; that the service of
summons was effected but was never received by Mr. Salazar
himself; the summons addressed only to Mr. Salazar was left his
office address; the Process Server‟s Report, however, records the
service as "unserved"; the employee who was present at the time of
the Process Server enquiring about Mr. Salazar informed the
Process Server that Mr. Salazar would be unavailable for a few days
and that the employee had no instructions to accept any such
summons/ documents. It is submitted that despite having so
informed the Process Server, he left behind the court summons and
a copy of the paper book of the eviction petition at the office of the
tenant. The employee, who refused to act without any instructions,
later informed Mr. Salazar about the service of summons which
prompted the latter to take steps towards filing the leave to defend
application. The paper book was left by the Process Server on the
31.07.2008 and that Mr. Salazar was made aware about the
summons on 1.08.2008. The leave to defend application was filed
on 18.08.2008. So far as the date of filing the leave to defend
application is concerned, there is no dispute that it was filed on the
18th August 2008. It is brought to the attention of this Court that the
Learned ARC held that the leave to defend application was not filed
within 15 days from the date of service. The impugned order
addressing this issue notes:
"19. It is further to be noted that in his application
filed under section 25 B (4) and (5) of DRC Act,
RC. REV 374 of 2013 Page 6 of 31
respondent late Mr. Salazar Louis Anthony Marques
has himself stated that process server had delivered
the copy of paper book on 31.7.2008 against
endorsement on the summons from his staff and that
he received information about summons on 1.08.2008.
The application seeking leave to defend the eviction
petition has been filed on record on 18.08.2008 and
not within 15 days of receipt of notice of filing of
eviction petition in form specified under Third
Schedule of the Act."
7. Reading of the impugned order on this point would clearly lead to
an understanding that while the tenant came to know about the
summons being served on the 1st of August 2008, the leave to
defend application should have been filed within 15 days thereby
meaning the period of limitation starts running against the tenant
from the 1st of August, 2008. The impugned order held that since
the summons was served upon the tenant on the 31 stJuly, 2008; the
15 days expire on 15th August while the application seeking leave to
defend was filed only on the 18th of August, 2008. Mr. Vashisht,
the learned Senior Counsel submitted that even if it were to be
assumed that the summons was served in accordance with law, the
tenant had filed the application well within the period of limitation.
It was brought to the attention of the Court that 15 th of August,
2008, being Independence Day, 16th being Rakhi and 17thAugust
being a Sunday, the tenant could not possibly have filed his
application for leave to defend on any of those three days.
Therefore, it was only the 18th of August when he possibly could
have and indeed did file the application. He submitted that this
RC. REV 374 of 2013 Page 7 of 31
contention was raised before the Trial Court which, however, was
not addressed it, instead it held that the 15 days period of limitation
came to an end on the 15th thereby barring the tenant from filing the
application any later.
8. It is well settled that the power of the Rent Controller does not
permit him to extend the period of filing the application to contest
the eviction even by a day. This Court does not deem it necessary to
cite those judgments again for the issue herein is not whether the
Rent Controller has the power to extend the period of 15 days to file
the application but whether the Rent Controller has correctly
calculated the statutory period. It is not in dispute that the tenant„s
employee received the summons on 31.7.2008. It is not disputed
that the application was filed on the 18.8.2008, as argued 15th, 16th,
17th August were days when it was impossible for the tenant to file
his application, which leads one to the conclusion that the tenant
either had the option to file before the 14th August, which had he
done so, the issue of limitation would not have arisen or he had the
option to file after the 17th August as it is in the present case. For
computation the period of limitation, Section 10 of the General
Clauses Act, 1897 might be of aid. The section reads as under;
"9. Commencement and termination of time.-(1) In
any [Central Act] or Regulation made after the
commencement of this Act, it shall be sufficient, for
the purpose of excluding the first in a series of days or
any other period of time, to use the word "from", and,
for the purpose of including the last in a series of days
or any other period of time, to use the word "to"."
RC. REV 374 of 2013 Page 8 of 31
The Supreme Court in Tarun Prasad Chatterjee v. Dinanath Sharma3
has brought clarity to the issue by holding that the first day in a series
shall be excluded while the last day of the series will be included while
computing the period of limitation. The Supreme Court held:
"12. Section 9 says that in any Central Act or
regulation made after the commencement of the
General Clauses Act, 1897, it shall be sufficient for
the purpose of excluding the first in a series of days or
any other period of time, to use the word "from", and,
for the purpose of including the last in a series of days
or any period of time, to use the word "to". The
principle is that when a period is delimited by statute
or rule, which has both a beginning and an end and
the word "from" is used indicating the beginning, the
opening day is to be excluded and if the last day is to
be included the word "to" is to be used. In order to
exclude the first day of the period, the crucial thing to
be noted is whether the period of limitation is
delimited by a series of days or by any fixed period.
This is intended to obviate the difficulties or
inconvenience that may be caused to some parties.
For instance, if a policy of insurance has to be good
for one day from 1st January, it might be valid only
for a few hours after its execution and the party or the
beneficiary in the insurance policy would not get
reasonable time to lay claim, unless 1st January is
excluded from the period of computation."
Applying the aforesaid method, the date of receipt of intimation or
knowledge of the court proceeding through the summons, i.e. 31 st July,
2008, would need to be excluded from the period of limitation. The
fifteen (15) days statutory period for filing the leave to defend
3
(2000)8 SCC649
RC. REV 374 of 2013 Page 9 of 31
application would expire on the 15th of August, 2008, which happened
to be the Independence Day - a day when the court was closed.
Section 4 of the Limitation Act, 1963 stipulates that when such period
of limitation expires on a day when the Court is closed, the
proceedings may be instituted on the day when the Court re-opens. It
goes without saying that applying this section would necessarily lead
to a conclusion that since 15th, 16th and 17th August 2008 were court
holidays, the period of limitation had not yet extinguished. The learned
Senior Counsel is correct, to this extent, in his submission that the
tenant had indeed filed the leave to defend application within the
statutory period of limitation. The intent of section 4 is based on the
maxim "lex non cogit ad impossibilia"4. This Court holds that the Rent
Controller erred in arriving at a finding that the tenant was barred by
limitation in filing his leave to defend application.
AFFIDAVIT
9. It was submitted that the Trial Court erred in holding that non-
attestation of the affidavit by Oath Commissioner is fatal to the entire
leave to defend application. It was submitted that such defect was
curable in nature. The affidavit accompanying the leave to defend
application was not attested by the Oath Commissioner owing to
certain clerical error and that the Learned ARC ought to have allowed
the application filed under section 151 CPC for bringing the affidavit
on record. The learned Senior Counsel submitted that Section 25-B(4)
4
Latin: The law does not compel a man to do the impossible
RC. REV 374 of 2013 Page 10 of 31
of the DRC Act requires an affidavit to be filed alongwith leave to
defend application. Such an affidavit was indeed prepared by Late Mr.
Salazar himself. Thus, the requirement under the section stood
fulfilled. The administration of Oath by the Oath Commissioner is not
a prerequisite mentioned in the section and that the Learned ARC
ought not to have treated the absence of attestation as a defect going to
the root of the validity of the leave to defend application. In
furtherance of his submission, reliance was placed on T.
Phungzathang v. Hangkhanlian & Ors5. The counsel brought to the
attention Justice R. C Lahoti‟s concurring opinion in the judgment,
which held:
"The requirement of section 83(1) proviso is of an
affidavit in prescribed form. An endorsement by the
specified officer before whom the affidavit is sworn is
not the requirement mentioned in the section....
....
The later requirement does not relate to form of
affidavit; it prescribes the persons recognized by the
Act and the Rules as competent to administer oath to
the deponent of affidavit for the purpose of Section
83(1) read with Rule 94-A and suggests, for the sake of
convenience and consistency, the manner of
endorsement to be made by the magistrate, notary or
commissioner of oaths administering oath to the
deponent. Such endorsement made by the officer
administering oath to the deponents is not an integral
part of the affidavit. Preparing, signing and swearing
an affidavit are acts of the deponent; administering
2001 (8) SCC 358
oath and making an endorsement in proof thereof on
the affidavit are acts of the officer administering the
oath."
The learned Senior Counsel further relied on T. M Jacob v. C. Poulose
& Ors.6 wherein the Supreme Court held:
"....the non- mention of the name of the notary or the
absence of the stamp and seal of the notary in the
otherwise true copy supplied to the appellant could not
be construed to be omission or variation of a vital
nature and, thus the defect, if at all it could be
construed as a defect was not a defect of any vital
nature attracting consequences of Section 86(1) of the
Act. ........"
10. It was submitted that Section 83(1) of the Representation of People‟s
Act, 1950 was similar to the Delhi Rent Control Act in wanting an
affidavit to be filed according to the provisions of the Code of Civil
Procedure. The abovementioned judgments relied by the counsel dealt
with the non-filing of an affidavit in a prescribed form under the
Representation of People‟s Act. Furthermore the counsel drew the
attention of this Court towards Section 7 of the Oaths Act, 1963. A
bare reading of the section shows that omission or failure to take any
oath or failure to make an affirmation shall not invalidate the
proceedings. The same section also holds that irregularities in
affirmation or administration of Oath shall not lead to render the
evidence as inadmissible. The learned counsel submitted that that
being the settled position; the Trial Court erred in holding that a defect
(1999) 4 SCC 274
in the affidavit is not a curable thereby refusing to entertain the leave
to defend application.
11.This Court is unpersuaded by the submissions made on behalf of the
tenant. Section 25B of the DRC Act provides for summary nature of
proceedings when eviction is sought on certain specified grounds, one
such being section 14(1)(e) of the Act i.e. eviction for bona fide
requirement for the tenanted premises and the section lists out the
procedure that ought to be followed by both the tenant and the
landlord. One such procedure required is the filing of an affidavit with
the leave to defend application. The affidavit to be filed is as per the
provisions of the Code of Civil Procedure. The affidavit filed in such
summary proceedings is of importance as it aids in adjudicating the
eviction petition in a summary manner. The legislative intendment for
providing a clear process is to ensure that the landlord does not suffer
owing to the length of the litigation. It is understood that when a
landlord files an eviction petition under section 14(1)(e) of the Act, the
landlord himself and/or his dependents are in dire need of the tenanted
premises. If such eviction petitions are not treated as summary
proceedings, the landlord may never have the opportunity to rightfully
possess the tenanted premises in time. The landlord would have to wait
till he sees the end of litigation until before he has the possibility of
being able to meet his bona fide requirement. This could well mean
that the need for which the landlord filed the eviction petition in the
first place would diminish with time. In order to facilitate the landlord
in being able to possess his tenanted premises before such need
extinguishes, the procedure is treated as summary in nature. The
provision in the Act makes it amply clear that the tenant does not get
an automatic right to put the eviction petition to trial. While the right of
a landlord to gainfully possess his own premises is guarded by the Act,
it does not imply that the tenant has no right to defend. The tenant is
only put to restrictions to the extent of avoiding the need of the
landlord diminishing with passage of time spent in trial. The tenant is
required to file the leave to defend application stating the grounds
which would disentitle the landlord from evicting him and such
application shall be accompanied by an affidavit. When the tenant
raises triable issues in his leave to defend application, the matter is put
to trial. However, if the Rent Controller is of the view that the tenant
has failed to raise any triable issues, the leave to defend application is
rejected and the eviction order is passed. Since the procedure is
summary in nature, the tenant is not required to produce all such
evidence at the stage of entertaining the leave to defend application.
Hence the affidavit is required alongwith the leave to defend
application. The affidavit filed is to affirm that the statements made in
the application are true to the best knowledge of the tenant.
12.Reliance was placed on Vidya Sagar by the counsel for the landlord to
contend that an unattested affidavit is not an affidavit at all. This Court
agrees with the reasoning of the Trial Court and its reliance placed on
Vidya Sagar is not misplaced. In Vidya Sagar, while filing his leave to
defend application the tenant filed an unattested affidavit; but later
moved an application under section 151 CPC seeking for the attested
affidavit to be taken on record while ignoring the earlier one; his
contention was that the lack of attestation of the affidavit is only a
technical defect and that the affidavit though unattested should be
taken on record. The learned ARC therein held that the affidavit
lacking the attestation was not merely a technical defect that can be
cured and accordingly rejected the leave to defend application. The
tenant therein filed a revision petition in the High Court contending
that the learned ARC erred in rejecting the leave to defend application.
Counsel for the tenant submitted before the Court that section 7 of the
Oaths Act, provided that no proceedings shall be invalidated owing to
lack of attestation of the affidavit. The counsel further contended that
the affidavit without the attestation was filed due to certain
inadvertence and an application under section 151 CPC to this effect
was moved. Yet the learned ARC did not take the affidavit on record.
This Court dismissed the revision petition by holding that :
"(8) Filing an unattested affidavit cannot be said to be a technical
defect or an irregularity keeping in view the provisions of Section
24 B(4) of the Act....unattested affidavit cannot be treated as an
affidavit as is required to be filed under 25B(4). Not only that the
affidavit should be attested but it should also be sworn before an
attesting authority. It is mandatory requirement that application
seeking leave to defend has to be filed along with an affidavit."
13.An affidavit is a statement in writing, made on oath or affirmation. The
administration of oath is, thus, an essential requirement of an affidavit.
If an oath is administered, there may follow several legal consequences
of which the most important is the obligation of the deponent to speak
the truth. The affidavit required to be filed with the leave to defend
application is to affirm that the facts laid down in the leave to defend
application are true to the best knowledge of the tenant. It is well
settled that the summary nature of the proceedings do not mandate the
tenant to produce all such evidence which would disentitle the landlord
from evicting him. The purpose of the affidavit plays a vital role in
determining the eviction petition. When such importance is placed on
the leave to defend application and the affidavit, it is only logical to
conclude that the affidavit has to be in the prescribed form. An Oath
Commissioner‟s attestation is a validation of the affidavit. Without the
attestation of the Oath Commissioner, Courts cannot rely on the
document for it lacks that the required sanction affirming its
authenticity. The Learned Single Judge in Vidya Sagar was correct to
hold that an affidavit having no attestation is not an attestation in the
eyes of the law.
14.This Court finds that the question attended to in Vidya Sagar is
pertinent as the issue of unattested affidavit is covered by the
judgment. Reliance on the Oaths Act or the Representation of People‟s
Act is misplaced as the purpose of affidavit filed therein is at different
footing. There is clear difference in the purpose for which an affidavit
is filed under the Representation of People‟s Act from an affidavit filed
under the Delhi Rent Control Act. This Court finds no error on the
part of the Learned ARC relying on Rakesh Gupta & Anr. v. Ashok
Dilwali7 to hold that an affidavit filed without fulfilling the
requirements as prescribed in the Act, is not a valid affidavit at all.
This Court is of the view that an affidavit without the attestation of the
Oath Commissioner is not an affidavit at all and the leave to defend
application was rightly rejected in the present petition. The application
filed by the tenant contained an incurable defect. The Learned ARC
cannot be expected to extend the period of filing the application
beyond 15 days and since the application filed was invalid, the Learned
ARC rightly rejected the same. This Court shall not hold otherwise.
SUMMONS
15.The learned Senior Counsel for the tenant, Mr, Vashisht, argued that
the service of summons by the landlord was not found in law and that
the learned ARC erred in not considering the same. It was submitted
by Mr. Vashisht that on 31.07.2008, the Process Server tried to serve
summons for the third time since the earlier two times, the tenant was
not available. An employee present in the given address informed the
Process Server that the tenant is unavailable and that he has no
authority to accept such summons on behalf of Late Mr. Salazar. It is
submitted that despite these clear instructions given to the Process
Server, a copy of the eviction petition was left at the office of the
tenant. The employee informed Late Mr. Salazar on 1 st August about
such summons which prompted the tenant to file his leave to defend
RCR No. 62/2010
application. Mr. Vashisht argued that the time to file the leave to
defend application starts running from the time when such summons is
served in accordance with the provisions of the Delhi Rent Control
Act. Since the landlord has resorted to a method for serving unfounded
in law, the tenant cannot be faulted with. The learned Senior Counsel
draws this Court‟s attention to section 25 B(3) of the Act which states:
25B(3)(a)-The Controller shall, in addition to, and
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 the 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.
It was submitted that when the Act makes it clear that summons are to
be instituted in two methods, the landlord has failed to follow this
requirement. Furthermore, the Process Server Report shows the
summons to be "unserved" on 31st July when actually a copy of the
eviction petition was left behind. Under these circumstances, it is only
logical to conclude that the tenant was not served with the summons at
all and that the period of limitation to file the leave to defend had not
yet begun. Learned Senior Counsel relies on Devender Nath v. Mohd.
Asim8 to explain that the Rent Controller is to ensure that the summons
was effected in both ways as mandated by the Act. The learned counsel
further submitted that it is the pious duty of the Rent Controller to
ensure that the tenant was served as per the prescribed procedure and
that the Learned ARC has failed to do so in the present petition.
Reliance was placed on Prithipal Singh v. Satpal Singh9 to show that
the Section 25B of the Act is a complete code in itself and that the
Rent Controller was required to ensure that every procedure was duly
met with by the landlord. It was submitted that a mere knowledge of
summons by the tenant will not cure the lacuna in following the
procedure as set out in the Act and that the tenant is at liberty to raise
the issue of service at any stage and not confined to raising such plea
only before the Rent Controller.
16.On the other hand learned Senior Counsel for the landlord, Mr.
Sandeep Sethi, argued that the tenant has raised the contention of
service of summons for the first time now. The contention regarding
the lack of proper service was not raised by the tenant before the ARC
and the only issue requiring the attention of the Learned ARC was the
non-attestation of affidavit by the Oath Commissioner. He submitted
RC. REV 507/2012
JT 2009 (15) 423
that service was construed to be complete when the tenant became
aware of such summons being served upon him. The tenant has also
taken the necessary steps to file his leave to defend application when
the landlord served the summons which only goes to show that the
purpose for which summons are issued stand satisfied. The tenant is
not at liberty to claim that summons was not served after having filed
the leave to defend application immediately after acting on the
knowledge of summons. He refers to the Trial Court order of
22.9.2008 wherein after the filing of the application for leave to
defend, time was granted to the landlord to file his reply thereof and a
rejoinder thereto, if any, to the tenant. But no argument or objection
was raised or leave sought to file another application for leave to
defend or for extension of time on the ground that the summons was
either improperly served or not deemed to be served in law. The record
of proceeding reads as under:
"Copy of the application for leave to defend has been
received by the petition. However, reply is not ready.
Adjournment is made for tendering the same. Original reply be
filed and advance copy be supplied to the other side.
Put up for rejoinder, if any, on the next date of hearing
i.e. on 10.12.08."
17.He further argued that the tenant‟s submission that an argument
regarding service of summons was raised but the Rent Controller did
not record is untenable. The purpose of summons is to inform the
tenant about the eviction proceeding instituted against him. When the
tenant acts on such information received, he cannot claim that he was
not served at all at a later stage. The learned counsel submitted that the
Learned ARC was correct in rejecting the leave to defend application
as it contained a defect which was not curable and that the impugned
order suffers from no material irregularity.
18. This Court again finds itself unable to agree with the contention of the
tenant. There is no dispute that the tenant was not available for the
third time when the Process Server tried to serve upon the tenant.
Admittedly, on receiving the information about the summons, the
tenant filed a leave to defend application, which this Court has held,
was within the period of 15 days. However, such application failed to
contain the vital attestation of the Oath Commissioner because of
which the application was rejected. The contention of the tenant that
the landlord is required to follow the procedure as prescribed in
Section 25B of the Act is valid. However, the contention cannot
succeed when such procedure would delay the process of litigation or
might dissolve the intention of the summary nature of the
proceedings. This Court in Devender Nath held that service of
summons ought to be effected through in both ways and that such
summons ought to be addressed to the tenant or his agent. The
principle laid down in the above mentioned judgment will hold valid
when such summons was not issued and that the tenant or his
authorized agent had no knowledge about the same. In those
circumstances, it would cause grave injustice to the tenant if he had no
knowledge or that he was never given the opportunity to defend
himself in Court.
19. The legislative intent of Section 25B of the Act is to ensure the
summary nature of the proceedings, initiated for bona fide
requirement for the tenanted premises, enable a landlord in genuine
need to be able to possess the tenanted premises. At the same time,
Courts are to ensure that the tenant gets his fair opportunity to defend
himself in Court. The Courts do not ipso facto pass an order for
eviction when an eviction petition is filed under Section 14(1)(e) of
the Act. The tenant is summoned to show why the landlord should not
be evicting him. When the tenant is not aware of such summons being
issued on him, it would be contrary in law to say that the tenant was
given due opportunity. The tenant‟s reliance on Devender Nath is
misplaced as the circumstances under which the Court held there was
a necessity for effecting service by both methods are different from
the present petition. In Devender Nath, the service was effected but
on a person who was neither the tenant nor his agent. The tenant was
unaware of the service of summons and hence not in a position to file
the leave to defend application within 15 days and appear before the
Rent Controller. The Court therein was right holding that both
methods of service ought to be effected. The facts in the present case
are however of a different complexion and this Court is of the view
that the decision in Devender Nath would not apply.
20. This Court is of the view that a decision taken by any Court without
affording an opportunity to the other party is contrary to the principle
of natural justice. In the present petition, the tenant was aware of the
service and he has taken the necessary steps to file an application. His
actions indicate his due knowledge and the actions by him thereafter
taken are sufficient to show that there was service of summons. The
issue of non-service was never raised or pursued, either in the
previous proceedings by the tenant before this Court in the writ
petition challenging the applicability of the Act to an eviction
proceeding apropos a commercial space or the subsequent Special
Leave Petition file before the Supreme Court, both of which resulted
in dismissal on 19th March, 2013. This Court would consider the
observation of the Division Bench in WP (C) No.1801/2013 titled
Olive Marques & Anr. V. Union of India & Ors. decided on
19.3.2013, of much relevance wherein the Court had dismissed the
petition with the costs of Rs.50,000/-. The Court therein observed:
"2 Record shows that an eviction petition under Section 14
(1)(e) read with Section 25-B of the said Act has been filed
by the landlord Mohd. Haroon Japanwala (respondent No. 4)
seeking eviction of his tenants/petitioners from shop No. G-
14, Marina Arcade, Connaught Circus, New Delhi
(hereinafter referred to as the „said premises‟). The original
tenant was Mr. Salazar Luis Anthony Marques and
petitioners No. 1 & 2 are his widow and daughter. The
tenancy was commercial. The business being run in the said
premises was under the name and style of „M/s. Marques &
Company‟.
3 Summons were served upon the petitioners on 12.05.2008
which were received through their employee. On 18.08.2008,
an application seeking leave to defend was filed by the
petitioners under Section 25-B (4) and (5) seeking leave to
contest the eviction petition. Respondent No. 4 filed his reply
to the said application taking an objection that the affidavit
filed by the tenants was unattested. On merits also, the stand
set" up by the petitioners was disputed. Meanwhile since the
original tenant (S.L.A. Marques) had expired on 10.04.2009,
an application seeking substitution of his legal heirs was filed
which was followed by another additional application. On
14.01.2010, the petitioners filed an application under Order 6
Rule 17 of the Code of Civil Procedure, 1908 (hereinafter
referred to as the „said Code‟) seeking permission to amend
their affidavit to the extent that it was not attested or in the
alternate to file a fresh affidavit in support of their
application seeking leave to defend. A reply was filed by
respondent No. 4 objecting to the same to which a rejoinder
was filed. Written submissions were thereafter filed by the
petitioners.
4. On the last date of hearing before the ARC which was
02.03.2013 since the Presiding Officer was on leave, the
matter was adjourned to 27.04.2013. Submission of the
petitioners is that in this interregnum period they were legally
advised to file the present writ petition challenging the
constitutional validity of Chapter III-A of the said Act and
since the vires could only be challenged before a writ Court,
the present petition was accordingly filed.
xxxx xxxx xxxx xxxx xxxx
12 In Gian Devi Anand (supra) which was decided by the
Supreme Court in 1985 the moot question before the Apex
Court was whether a commercial tenancy is liable to be
inherited; the question was answered in the positive; tenancy
rights even in commercial premises do not come to an end
with the death of the tenant but they devolve upon their legal
heirs and legal representatives. The law has evolved since
then. In Kewal Singh (1980-supra) the classification on the
class of landlords under Section 14 (1)(e) and the procedure
applicable and as contained in Section 25-B of the said Act
had been questioned; submission was that the classification is
not in consonance with the object sought to be achieved by
the said Act. The Supreme Court had answered this question
in the following words:-
"We would, therefore confine ourselves to the validity of
Section 14(1)(e) and the procedure prescribed to give relief
mentioned in the aforesaid Section in Section 25B. Before
discussing the relevant provisions of the Act it may be
necessary to observe that the Rent Control Act is a piece of
social legislation and is meant mainly to protect the tenants
from frivolous evictions. At the same time, in order to do
justice to the landlords and to avoid placing such restrictions
on their right to evict the tenant as to destroy their legal right
to property certain salutary provisions have been made by
the legislature which give relief to the landlord. In the
absence of such a legislation a landlord has a common law
right to evict the tenant either on the determination of the
tenancy by efflux of time or for default in payment of rent or
other grounds after giving notice under the Transfer of
Property Act. This broad right has been curtailed by the Rent
Control Legislation with a view to give protection to the
tenants having regard to their genuine and dire needs. While
the rent control legislation has given a number of facilities to
the tenants it should not be construed so as to destroy the
limited relief which it seeks to give to the landlord also. For
instance one of the grounds for eviction which is contained in
almost all the Rent Control Acts in the country is the question
of landlord's bonafide personal necessity. The concept of
bonafide necessity should be meaningfully construed so as to
make the relief granted to the landlord real and practical."
13 After quoting the provisions of Section 25-B, the Court
returned the following finding:-
"We have already pointed out that the classification made by
Section 25B is a reasonable classification and cannot be said
to be in any way discriminatory or arbitrary. Even though a
summary procedure has been evolved the tenant has been
afforded full opportunity to defend the application provided
he can disclose good grounds for negativing the case of the
landlord. No litigant has a right to protract the legal
proceedings by taking frivolous, irrelevant, irrational or
uncalled for pleas. This is what the Section seeks to prevent."
xxxx xxxx xxxx xxxx xxxx
17 This petition is nothing but an abuse of the process of the
Court. The petitioners have used all dilatory tactics available
at their command to forestall the hearing which is fixed for
27.04.2013 on his application seeking leave to defend. These
tactics can be described as nothing short of an abuse of the
process of the Court and wastage of its precious time."
21. In eviction petitions, wherein the tenant had no knowledge about
service of summons and has therefore failed to file the leave to defend
application within 15 days from the date of service, the tenant cannot
be put to the disadvantage of an eviction order. Mr. Vashisht relied on
the judgement in Frank Anthony Public School v. Amar Kaur10 to
submit that summons was mandatorily required to effected in both
ways and the computation of period for limitation begins from the
date of second service. This Court in Frank Anthony (supra) held
that the period of limitation starting the date of second service did not
mean it wiped out the effect of the first service but that both services
were equally important in law. Facts in the abovementioned judgment
relied on is very different from the circumstances under which the
present contention is being entertained. In the present petition, it is
certainly not that case that the tenant had no knowledge about the
summons till the period of 15 days elapsed. It is not the situation
wherein the tenant was served on two different dates and the tenant
(1984)6 DRJ 47
chose to compute his period of limitation from the date of second
service. The tenant herein may not have been physically present to
receive the summons but he was made aware of its existence at the
very earliest, which caused him to move an application seeking leave
to defend. At this juncture, it might be pertinent to note that while the
tenant may have filed an application seeking leave to defend within
the period of 15 days, the Rent Controller rejected the application
because the affidavit lacked the Oath Commissioner‟s attestation.
Needless to say, such an affidavit is not an affidavit as per law and
hence there was no valid application for leave to defend filed.
22. The object of service is to give notice to the party against whom the
suit/ petition is instituted so that he might be aware of the same and is
able to contest the suit if he so desires. There is no doubt in saying
that the service of summons is a matter of primary importance in order
to provide a fair and reasonable notice to the parties to enable them to
defend the legal proceedings against them. The underlying object of
service of summons stems from a sense of justice and fair play. While
this Court agrees that the summary procedure under section 25B ought
to be followed mandatorily, the purpose of the section will be defeated
if Courts were to hold that the tenant was not served in according with
law even when such tenant acquires knowledge about the service and
files his leave to defend application on time. It is pertinent to note that
Courts proceed on the basis actus curiae neminem gravabit11. In
Latin: An act of Court harms none
Sangram Singh v. Election Tribunal12 the Supreme Court has held
that the purpose of service of notice is to inform the addressee and
once so informed, there can be said to be no infirmity in the process.
In the present case the tenant had acknowledged receipt of the
summons in his office on 31.7.2008, of which he became aware very
next day and filed an application for leave to defend within the 15
days prescribed. The objective of the law to intimate the addressee
was sufficiently met. Mr. Vashisht‟s argument that the said judgement
would not be apply to the present case since it was dealing with
service under the CPC is untenable because it is the principle
subserving and the purpose of service which is discussed by the
Supreme Court. The stipulation of the dual mode of service under
Section 25B is to ensure that the tenant is duly served. As in the
present case when the noticee/tenant had acknowledged receipt of
notice or intimation thereof and filed a response thereto seeking
extension of time for being served by the second mode too, would be
an empty exercise in formality. There would be severe injustice to the
landlord if the Court would extend time to the tenant to file the leave
to defend especially when he was aware of the service of summons
and had already taken the necessary steps to file the leave to contest
application. The purpose of summons stood accomplished when the
tenant took active steps to file his application within 15 days. The
High Court of Allahabad in Nathu Ram v. Salim Abdul Karim13
AIR (1955) SC 425
AIR 1933AII 165
while addressing the issue of service of summons under the Code of
Civil Procedure noted:
"1......An ex parte decree cannot be set aside merely
on the ground of irregularity in the service of
summons, if the Court is satisfied that the defendant
knew or but for his wilful conduct, would have
known, of the date of hearing in sufficient time to
enable him to appear and answer the plaintiff's
claim."
While it could be contended that the Code of Civil Procedure is
separate and distinct from the Delhi Rent Control Act, the purpose of
summons and the object is seeks to achieve are at par with each other.
The legislative intent is identical- to apprise the other party of a
proceeding being instituted against him.
23. This Court is of the view that the actions of the tenant have proved
that there was effective service of summons. The tenant cannot go
behind his acknowledgement on admission of receipt of the court
notice and copy of the eviction petition. It would be contrary to the
Evidence Act. Furthermore, when such acknowledgement by tenant is
established, the clock cannot be turned back to the detriment of the
eviction-petitioner due to the long pendency of the case and also
because of wastage of judicial time. It would be contrary to the
purpose of section 25B if this Court were to hold that such speedy,
effective steps taken by the tenant are insignificant at this stage. This
Court also notices that oddly enough this contention has not been
argued in depth before the Rent Controller with the same vigour as it
is presently done so. This Court is of the view that there would be
great injustice if it were to agree with the contention raised on behalf
of the tenant and grant him another opportunity to file his leave to
defend application, when he has already exhausted the opportunity.
There is a fundamental difference between a tenant who had no
opportunity to file his leave to defend application, as he was unaware
about the summons from a tenant who acquires knowledge and acts
on the same immediately. In Puwada Venkateswara Rao v.
Chidamana Venkata Ramana14 while addressing the issue of conduct
of parties amounting to service of summons and reconciling the
divergent opinions of the Calcutta High Court and the Bombay High
Court, MH Beg J. (as he then was) in his obiter dictum, observed:
"10. The two decisions are reconcilable. The Calcutta High
Court applied a rebuttable presumption which had not been
repelled by any evidence. In the Bombay case, the
presumption had been held to have been rebutted by the
evidence of the defendant on oath so that it meant that the
plaintiff could not succeed without further evidence. The
Andhra Pradesh High Court had applied the ratio decidendi
of the Bombay case because the defendant-appellant before
us had deposed that he had not received the notice. It may be
that, on a closer examination of evidence on record, the
Court could have reached the conclusion that the defendant
had full knowledge of the notice and had actually refused it
knowingly. It is not always necessary, in such cases, to
produce the postman who tried to effect service. The denial of
service by a party may be found to be incorrect from its own
admissions or conduct...."
(1976) 2 SCC 409
24. Clearly the issue of non-service is an afterthought and yet another
futile endeavour by the tenant to prolong the eviction proceeding and
to defeat the very objective of the speedy disposal of petition seeking
eviction of tenanted premises on bona fide need, which is always
pressing, as envisaged under Section 25B of the Act. The tenant
cannot claim the shield of lack of service when his conduct indicates
otherwise. For the abovementioned reasons, this Court finds no reason
to interfere with the impugned order. The petition is without merit and
is accordingly dismissed. No order as to costs.
NAJMI WAZIRI
(JUDGE)
OCTOBER 01, 2014/d/acm
