Delhi High Court
Shri Suraj Bhan vs Shri Vijay Prakash Bhardwaj on 9 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC. REV. No. 213/2014
% 9th September, 2014
SHRI SURAJ BHAN ......Petitioner
Through: Mr. Dinesh Kapoor, Advocate.
VERSUS
SHRI VIJAY PRAKASH BHARDWAJ ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? (Yes)
VALMIKI J. MEHTA, J (ORAL)
C.M. No.10412/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ RC. REV. No.213/2014 and C.M. No.10411/2014 (stay)
2. This petition under Section 25-B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as 'the Act') impugns the order of the Rent
RCR No.213/2014 Page 1 of 6
Controller dated 2.7.2012 by which the Rent Controller has decreed the
bonafide necessity eviction petition filed under Section 14(1)(e) of the Act
on the ground that the leave to defend application was not filed within the
statutory period of 15 days.
3. It is now settled law in view of the judgment of the Supreme
Court in the case of Prithipal Singh Vs. Satpal Singh (dead) through LRs
(2010) 2 SCC 15 that delay of even a single day cannot be condoned with
respect to filing of the leave to defend application. The sequitur is that once
the delay cannot be condoned, the leave to defend application filed after the
period of 15 days cannot be considered and once no leave to defend
application is to be considered, contents of the eviction petition are deemed
to be admitted as per Section 25(B) of the Delhi Rent Control Act, 1958.
Once, contents of the eviction petition are deemed to be admitted, eviction
order naturally follows.
4. Learned counsel for the petitioner/tenant argues before this
Court two aspects. First aspect which is argued is of merits that even if the
contents of the eviction petition are taken as correct, yet, the eviction order
should not have been passed in the present case as the partition deed
between the two brothers i.e respondent/landlord and his brother is a sham
document. Secondly, it is argued that there is no proper service in the
RCR No.213/2014 Page 2 of 6
present case inasmuch as service has been affected on the son of the
petitioner/tenant and which is not a proper service in view of the judgment
of this Court in the case of Jor Singh Vs. Sanjeev Sharma 205 (2013) DLT
117.
5. So far as the first aspect is concerned, the same is without any
merit because what cannot be done directly cannot be done indirectly i.e
what should have been argued as a ground to grant leave to defend in a leave
to defend application, if not permitted as there is no leave to defend
application, the same cannot be allowed to be urged by arguing the same to
dismiss the bonafide necessity petition because as per Section 25-B(4) of the
Act on not filing a leave to defend application, contents of the eviction
petition are deemed to be admitted and contents of the eviction petition show
that the suit/tenanted shop fell to the share of the respondent/landlord as per
the registered partition deed dated 13.08.2010 and which aspect has to be
taken to be correct because it is deemed to be admitted on account of non-
filing of the leave to defend application. Once that is so, I fail to understand
as to how any ground can be urged with respect to the partition deed being a
sham document and which ground could only have been urged in the leave
to defend application. Even if this ground was urged in the leave to defend
application, this ground would have been misconceived and most malafide
RCR No.213/2014 Page 3 of 6
because a tenant does not have locus to challenge an inter se partition deed
between the family members, much less a registered one, and which has
finally distributed the properties between two brothers.
6. So far as the aspect that the petitioner is not served and
therefore time for filing of the leave to defend application has not
commenced is concerned, it is conceded on behalf of the petitioner that this
ground was available to the petitioner for being raised before the Rent
Controller by filing of an application and for which there was sufficient time
before the impugned order dated 2.7.2012 was passed because petitioner was
served through his son way earlier on 6.3.2012. Once, no such ground is
raised before the Rent Controller with respect to the petitioner not being
served by relying upon the ratio of the judgment in the case of Jor Singh
(supra) such an argument is deemed to be waived because a provision of law
meant for the benefit of a person can always be waived by such a person
vide Martin & Harris Ltd. Vs. VIth Additional District Judge & Ors (1998)
1 SCC 732. Also, in my opinion, the plea which is urged of petitioner not
being served is a dishonest plea because it is not the case of the petitioner
that the son who received the summons did not immediately give the
summons of the eviction petition to the petitioner/father. It cannot be argued
on the basis of the ratio in the case of Jor Singh (supra) that although the
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petitioner accepts the service through his son yet subsequently it can
suddenly be argued, although such a point is never taken up earlier, that the
service is not a proper service for the period of leave to defend having
commenced. Also, Jor Singh's case (supra) does not lay down a ratio that
the summons which are accepted by a family member and then accepted as a
summons by the father/tenant, yet, service will not be a valid service
although the tenant/father did not dispute this aspect before the Rent
Controller below.
7. I have today in RC. REV. No.294/2014 titled as Shyam Sunder
Wadhawan Vs. Vivek Arya passed a very detailed judgment laying out the
guiding factors as regards service of summons in a bonafide necessity
eviction petition and they read as under:-
"17. The conclusions are:-
(i) Merely because summons are addressed to the tenant but received
by somebody else does not mean that in each and every such case the
service is not a valid service whether there is or is not service/refusal
depends upon the facts of each case.
(ii) If the summons is addressed to the tenant, and if the same is
received by a person other than the tenant, but with consent/or
knowledge or direction of the tenant, then the service is as effective
as the service on the tenant. To clarity further, if summons are
addressed to an agent of a tenant, then surely instead of the agent even
the tenant himself can receive the same, then, why not a summons
addressed to a tenant cannot be received by a person with consent or
knowledge or direction of the tenant. A caveat: when a person other
than the tenant receives the summons, the tenant must at that stage be
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in a place/state when he can file the leave to defend application within
the prescribed period.
(iii) If the tenant uses subterfuges, including those cases where he
is found to have endeavoured to conceal his personality, a court can,
depending upon facts of a particular case hold that there is
service/refusal of the summons.
(iv) Service effected directly by affixation is not a valid service
but affixation done following the refusal to receive summons is a valid
service.
(v) Summons sent by registered post, when are avoided to be
received by the tenant, then in such circumstances where it is clear
that the tenant has the knowledge that he must receive the registered
post article, but yet he does not, it can as per facts of a case, be held
that there is service/refusal by the tenant."
8. In view of the above, I do not find any merit in the petition as
none of the two aspects raised on behalf of the petitioner have any
substance.
9. Dismissed.
SEPTEMBER 09, 2014 VALMIKI J. MEHTA, J.
Ne
