Ashok Kumar vs Purshotam Lal Verma
2015 Latest Caselaw 3795 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     RC.REV. 242/2013 and CM No. 10460/2013

%                                         Reserved on: 28th April, 2015
                                          Decided on: 12th May, 2015

      ASHOK KUMAR                                       ..... Petitioner
                         Through:     Mr. Sanjay Rathi, Advocate.

                         versus

    PURSHOTAM LAL VERMA                       ..... Respondent
                  Through: Mr. Dilpreet Singh and Mr. Rajesh
                           Sharma, Advocates.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.

1. An eviction petition was filed by the respondent Purshotam Lal Verma under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (in short the DRC Act) seeking eviction of the tenanted premises i.e. Flat No.B-64A, Janta Flats, Raghubir Nagar, near Central School, New Delhi let out on a monthly rent of ` 12000/- per month excluding electricity and water charges to Ashok Kumar.

2. Ashok Kumar filed a leave to defend application before the learned ARC which was dismissed being barred by limitation vide order dated 14 th January, 2013. Even the review petition filed by Ashok Kumar was dismissed vide order dated 20th May, 2013. It was held that the notice of the eviction petition was served by ordinary process on 28th November, 2012 and by registered post on 8th December, 2012 on Ashok Kumar. The leave

to defend application was filed by Ashok Kumar on 17th December, 2012. Since the said leave to defend application was beyond period of 15 days from 28th November, 2012 i.e. the first date of service, the eviction petition was dismissed being beyond period of limitation and an eviction order passed. Ashok Kumar filed a review application before the learned ARC drawing the attention of the learned ARC to the decision of this Court in Chaman Lal Kewal & Ors. Vs. Kanta Devi 2013 (133) DRJ 235 wherein it was held that the limitation of 15 days shall be computed from the date of receipt of second notice. The review petition was dismissed by the learned ARC on the ground that it had no power to review its order.

3. Section 25B provides for a special provision for disposal of applications for eviction on the ground of bonafide requirement. The procedure for issuance of summons and the time for filing the leave to defend is provided in Sub-Sections 1 to 4 which are reproduced hereinafter:

"25. B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -

(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section.

(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.

(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, acknowledgement

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 an 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.

(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid."

4. On the facts as noted above which are not disputed between the parties two issues arise for consideration whether service by both the modes is essential and if so from which date i.e. from the date of first service or the second service the period of limitation of 15 days for filing the leave to defend application has to be counted. There are divergent views of this Court in the various judgments which I will hereinafter refer. This Court in Kamal Bhandari Vs. Brig. Shamsher Singh Malhotra 20 (1981) DLT 380

and Shyam Sunder Wadhawan Vs. Shri Vivek Arya (2014) 214 DLT 616 took the view that service by either mode was sufficient.

5. In Kamal Bhandari this Court held that under Sub-Section 3 of Section 25B DRC Act summons are to be issued to tenant both by ordinary process and registered post and service by either of the two modes is sufficient. It was further noted that under Section 25B(4) if the tenant has been duly served by either of the two modes the period of limitation has to commence from the date of service and if he has been served by both the modes then the period of limitation will commence from the date on which he was first served. It was held that by the Statute prescribing service of summons in two ways, the first service is not wiped out by the second service i.e. if the tenant has been served in the ordinary process and he is served again by registered post, the service by registered post does not wipe out the first service.

6. In Shyam Sunder Wadhawan (supra) this Court held that service under Section 25B(3) could be affected upon the tenant either by ordinary way or by registered post and on service by either of the two modes service would be complete where upon the tenant would be required to file his application for leave to defend within the stipulated period of 15 days.

7. This Court, however, took a contrary view in Frank Anthony Public School Vs. Smt. Amar Kaur 1984 (6) DRJ 47; Durga Devi Vs. S. Kumar 46 (1992) DLT 356; Shyam Kishore & Anr. Vs. Ganeshi Lal & Ors. 196 (2013) DLT 81A(CN) and Chaman Lal Kewal & Ors. Vs. Kanta Devi 2013 (133) DRJ 235.

8. In Frank Antony (supra) this Court held that the critical words in Sub- Section 3(a) of Section 25B are "in addition to and simultaneously with". So

the Controller is required to issue summons both in the ordinary as well as by registered post. He may also resort to the third method of service by publication in the newspaper "if the circumstances of the case so require". Thus the Controller is required to issue summons by registered post and "in addition to and simultaneously with" the ordinary summons. It was held:

"23.The legislature has devised a "special procedure for the disposal of the application for eviction on the ground of bona fide requirement". It is modeled on Order XXXVII of the Code of Civil Procedure. The object is to reduce delays in litigation. The object is to introduce a "summary trial" in place of full length trial. But it is not the object of the legislature that you deny to the tenant an opportunity to apply for leave to contest on the mere ground that he ought not to have been misled by the second summons."

9. In Durga Devi (supra) this Court noted that two modes of service are provided under Section 25B of the DRC Act and if the tenant is served by both the modes, limitation would be calculated through the latter date on which service was affected.

10. In Shyam Kishore (surpa) this Court following Frank Anthony and Durga Devi and distinguishing Kamal Bhandari held that the view consistently followed by this Court right from 1984 is that as two modes of service are provided the period of 15 days for filing of leave to defend by the tenant has to be counted form the date of second service. Again in Chaman Lal Kewal (supra) this Court held that second summons in no way diminishes its importance, potency or quality and the same holds true for vice-versa. The relevant provision of DRC Act clearly stipulates that the Controller has to mandatorily serve summons both through ordinary post as well as registered post. This entails that the tenant is conferred with a

statutory right to receive summons through both the means and the consistent view of this Court is that the limitation period of 15 days shall be computed from the date of the second summons.

11. All the decisions noted above have been rendered by Single Judges of this Court and in view of the divergent opinions it would be appropriate to refer the matter to a Division Bench for a decision on the following issues:

1. Whether the tenant is required to be served by both the modes as prescribed under Section 25B DRC Act or even service by one mode is sufficient service as per the requirement of the provision?

2. In case the tenant is served by both the modes whether the period of 15 days for filing the leave to defend has to be counted from the first service or the second service?

12. Subject to orders of Hon'ble the Chief Justice the matter be placed for consideration before a Division Bench on 20th May, 2015.

(MUKTA GUPTA) JUDGE MAY 12, 2015 'ga'