Mohit Chopra vs Anil Anand
2015 Latest Caselaw 8834 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+       RC. REVISION 93/2015 & CM APPL.3501/2015
                                         Decided on: 27th November, 2015
        MOHIT CHOPRA                                         ..... Petitioner
                           Through:      Mr. Vishwa Bhushan, Advocate


                           versus
        ANIL ANAND                                           ..... Respondent
                           Through:      Mr. Jagdev Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner-tenant against the

passing of an eviction order dated 12.08.2014 by Ms. Pooja

Talwar, the learned Additional Rent Controller, South-East, Saket

Courts, New Delhi.

2. The facts are not in dispute. The present petitioner is a tenant in

respect of a shop in premises No.8/2, Double Storey, Jangpura

Extension, New Delhi. The respondent-landlord filed an eviction

petition under Section 14 (1) (e) of the Delhi Rent Control Act,

1958 (DRC Act) seeking retrieval of the possession on the ground

of bona fide requirement. He claimed himself to be the owner of

the shop on the basis of a Will dated 14.03.1995 purported to have

been executed by his father Late Shri O.P. Anand, who had expired

on 16.12.1999.

3. The only point on the basis of which eviction order is assailed by

the petitioner-tenant is that he has not been served in accordance

with law. It may be pertinent to mention here that the following

four orders were passed respectively on 15.04.2014, 19.05.2014,

18.07.2014 and 12.08.2014, which read as under:-

"15.04.2014 Present: Petitioner in person.

Process not received back.

Be awaited.

In the meantime, fresh process be issued as per previous terms returnable on 19.05.2014.

Sd/-

(Pooja Talwar) ACJ/CCJ/ARC-(SE) Saket Court, New Delhi-15.04.2014. 19.04.2014 Present: Petitioner with counsel.

Service has been effected upon the respondent through his employee on 17.05.2014.

Let objection be filed within the stipulated period.

Renotify on 18.07.2014.

Sd/-

(Pooja Talwar) ACJ/CCJ/ARC-(SE) Saket Court, New Delhi-19.04.2014. 18.07.2014 Ld. PO has gone to attend Training at Delhi Judicial Academy, Dwarka.

Present: Petitioner with counsel Sh. Jagdev Singh.

None for defendant.

Renotify on 12.08.2014.

Sd/-

(Reader) 18.07.2014.

12.08.2014 Present: Counsel for the petitioner.

Vide separate order of even date, eviction order is passed in favour of the petitioner and against the respondent in respect of tenanted shop in the premises bearing No.8/2, Double Storey, Jangpura Extension, New Delhi. In terms of Section 14 (7) of the Act, the petitioner shall not be entitled to obtain possession of the tenanted shop in question before expiry of a period of six months from the date of the order. File be consigned to Record Room.

Sd/-

(Pooja Talwar) ACJ/CCJ/ARC-(SE) Saket Court, New Delhi-12.08.2014."

4. The contention of the learned counsel for the petitioner is that he

has not been served personally and that he had no person by the

name of Deepak employed by him and, therefore, the service of the

summons by the process server on Deepak could not be treated to

be a valid service on him. Reliance in this regard is placed by the

learned counsel for the petitioner on two judgments of Hon'ble Mr.

Justice Manmohan Singh in case titled Bishan Swaroop (since

deceased) through LR v. Manish Sethi & Ors., 2014 (2) Rajdhani

Law Reporter 195 and Devender Nath v. Mohd. Asim, 204 (2013)

DLT 141.

5. In both these judgments the learned Single Judge of this Court has

dealt in details the provisions of Section 25-B(2) & (3) (a) & (b) of

the Delhi Rent Control Act, 1958 which prescribes the procedure

for effecting the service of the summons in Schedule-III in respect

of an eviction petition filed on the ground of bona fide requirement

on the tenant. It has been stated that one of the essential

requirements of this special process of service provided under the

aforesaid provisions is that the summons must be addressed to the

tenant or to his duly authorized agent and it must be served on him.

So far as the authorized agent is concerned, it has been observed

that it must be duly authorized to accept the same and in the event

of default, it cannot be treated to be as a valid service.

6. The learned Single Judge has also dealt with the legislative intent

of making this provision for service on the tenant himself and

observed that this is done primarily to give a tenant the knowledge

about filing of the eviction petition and also enable him to an

opportunity to contest the matter on merits and not permit the case

to go by default.

7. I have considered both these judgments. There is no dispute about

the fact that in the facts of the said cases the learned Single Judge

did not deem it proper to accept the service on the tenant to be a

valid service because in one case it was accepted by the employee

and in the other case the summons were not served on the tenant

himself.

8. The learned counsel for the respondent on the contrary as brought

to my notice the judgment given by another learned Single Judge

of this Court in case titled Shyam Sunder Wadhawan v. Vivek Arya,

214 (2014) DLT 616. It has also dealt with the same issue of

service and has concluded 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 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."

9. The aforesaid observations passed by the learned Single Judge

Mr. Valmiki J. Mehta, J. has taken a contrarian view to the effect

merely because the summons are received by somebody else does

not mean in each and every case it will be treated to be not as a

valid service.

10. I find myself in agreement with the view expressed by Valmiki J.

Mehta, J. that merely because service is not effected personally on

the tenant does not mean that in every case it will not be treated as

a valid service. This I feel is the more pragmatic and practical

view taken by the learned Single Judge. The reason for this is that

it is common knowledge that in rent matters the tenant in most of

these cases avoids service and adopts various tricks to do the same.

This gives them opportunity to gain maximum time first exhausting

patience time as well as money on the part of the landlord to ensure

service on the tenant. It is no doubt correct that the purpose of

service is to make the tenant known about the filing of eviction

petition against him on the ground of bona fide requirement and as

far as possible the service must be effected on the tenant personally

but that does not necessarily mean that the service in each and

every case must be effected in person on the tenant as in case such

a strict interpretation to the legislative intent is given under Rule 2

and 3 of Section 25-B then it will defeat the very purpose of having

a summary procedure in respect of bona fide requirement matters.

Moreover, it is dependent on the facts of the each case where the

learned ARC has to form a conscious view as to whether the tenant

has been served or not.

11. Coming back to the facts of the present case summons have been

directed to be issued to the petitioner on 15.04.2014 by the learned

ARC in Schedule-III form. It is reflected from the order that

summons were issued by registered post as well as by ordinary

post. Though the ordinary process is not on record but the

registered post letter clearly shows that the postman had visited the

house/shop of the tenant number of times and gave the details

therein and made endorsement on the envelope itself about record

of the various dates when he had visited the tenant for the purpose

of service. But he has also noted that every time he visited the

premises the tenant was not found available. Obviously, the tenant

wanted to avoid the service. Thereafter, the summons were again

directed to be issued to the tenant which in fact were issued.

Although the registered cover is placed on record, the summons

which were sent through process server clearly indicate that some

person by the name of Deepak who had represented himself to be

an employee of the tenant and gave his mobile number also which

is written on the summons shows that he had spoken to somebody

before accepting the summons. Obviously, nobody other than the

person who has some connection with the premises would be

spoken to and he alone would suggest for acceptance of summons.

The process server has further made an endorsement on summon in

this regard.

12. Obviously one can draw an inference that if he had accepted the

summons of the eviction petition after speaking to somebody,

obviously, it could not be a person other than the tenant himself.

This service on the tenant and the report of the process server given

by him in the ordinary discharge of his official duty is presumed to

be correct and the learned ARC has rightly drawn an inference that

the petitioner-tenant has been duly served. Since the notice of the

summons clearly contains the endorsement that the leave to defend

application must be filed within 15 days, which has not been done,

obviously, the court had no other option but to pass an order of

eviction.

13. If we test the non service of the summons on the petitioner-tenant

then this does not get the support from his conduct. The petitioner-

tenant in his petition does not disclose as to how he ultimately

learnt about eviction order having been passed against him. If the

petitioner would have genuinely not been served or was not aware

of the eviction petition proceedings pending against him, he would

have given the reasons and the circumstances as to how he learnt

about the pendency or the filing of the eviction petition. Curiously,

this aspect confirms the actual position which the learned ARC has

drawn that the petitioner-tenant was duly served and he was

evading to appear in the Court.

14. Since he has chosen not to file his leave to defend application

within a period of 15 days from the date of service which has been

taken to be as 22.04.2014, obviously the learned ARC had no other

option but to pass a decree of eviction against him on account of

non filing of the leave to defend.

15. For the above said reasons, I feel that there is no illegality,

impropriety or any jurisdictional error in passing the eviction order.

I accordingly dismiss the revision petition filed by the petitioner-

tenant.

16. Pending applications also stand disposed of.

17. File be consigned to record room.

V.K. SHALI, J.

NOVEMBER 27, 2015 vk