Savita Rani & Anr vs Naresh Kumar And Anr.
2017 Latest Caselaw 5327 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 22.09.2017

+     RC.REV. 218/2016 and CM No. 14473/2016 (stay)

      SAVITA RANI & ANR                          ....Petitioners
                    Through           Mr.R.K. Sahni, Adv.
               Versus

      NARESH KUMAR AND ANR.               ...Respondents
                   Through    Mr.Sanjeev Sindhwani, Sr.Adv. with
                   Mr.Ravinder Chadha and Mr. Jagdish Prasad,
                   Advs.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present revision petition is filed under Section 25 B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) seeking to impugn the ex parte eviction order dated 15.09.2015 passed the Additional Rent Controller (hereinafter after referred to as the ARC) under Section 14(1) (e) of the DRC Act.

2. Earlier, I had heard the learned counsel for the petitioner Mr.R.K.Saini and Mr.Sanjeev Sindhwani, the learned senior counsel appearing for the respondents. As certain clarifications were required, the case was listed on 08.09.2017 and today.

3. The respondents filed the eviction petition against the said alleged tenant, namely, M/s. Hindustan Petro Chemicals through its proprietor Smt.Savita Rani. It was stated that the proprietorship concern through Smt.Savita Rani is the tenant of one shop on the ground floor of the premises

being WZ-32, Mohanohar Park, East Punjabi Bagh, New Delhi. The respondents also state that the tenanted premises are however exclusively occupied by one Sh.Gaurav Gupta to whom the premises have been sub-let, assigned, parted with possession. It is stated that Sh.Gaurav Gupta is the son of Smt. Savita Rani and that he is in possession of the premises without the written consent of the respondents.

It was urged that the father of the respondents, namely, Sh.Chunni Lal Sharma was the owner of the property via sale deed dated 01.07.1967. In 1979, the said Sh. Chunni Lal Sharma had let out one shop on the ground floor to M/s Hindustan Petro Chemicals through its sole proprietor Smt. Savita Rani (petitioner No.1). Smt. Savita Rani had entered into a partnership with one Sh. Jai Prakash Gupta for doing business. Copy of the partnership deed dated 18.07.1979 was provided to Sh. Chunni Lal Sharma. Subsequently, Sh. Jai Prakash Gupta retired from the said business in 1979 and the partnership came to an end. It was further urged that the property consists ground floor, first floor, second floor and third floor. One hall on the ground floor is being used by the mother and daughter of respondent No.1. Respondent No.1 is also using a small office on the ground floor. It was urged that the respondents require the tenanted premises for bona fide use and business as they are unable to carry on the business from a small area available to them. The first floor of the property is said to be used by respondent No.1, his wife, his married son and daughter-in-law and the second floor is being used by respondent No. 2, his wife and his two sons for residential purposes. The third floor comprises two tin sheds and one toilet which are being used jointly by the respondents.

4. The present petition is filed by Smt.Savita Rani as petitioner No.1. The concern M/s Hindustan Petro Chemicals through alleged sole proprietor Shri Gaurav Gupta is arrayed as petitioner No.2.

5. The impugned order notes that the notice of the eviction petition was sent to petitioner No.1 i.e. Smt. Savita Rani, the proprietor and petitioner No.2. However, Sh. Gaurav Gupta, the son of petitioner No.1 refused to accept the summons and hence, the service was deemed effected upon the petitioner No.1. Keeping in view the provisions of Section 25B of the DRC Act, the judgment of the Supreme Court in the case of Prithipal Singh vs. Satpal Singh (dead) through LRs, (2009) 2 SCC 15 and also the averments in the eviction petition, the ARC passed an eviction order in favour of the respondents.

6. I have heard learned counsel for the parties.

7. Learned counsel for the petitioners has vehemently argued as follows:-

(i) The respondents reside in the same premises where the tenanted premises exist. They have hence manipulated the service.

(ii) The admitted fact is that Sh. Gaurav Gupta is the tenant of the premises. In fact in the eviction petition, a reference was also made about the said Sh. Gaurav Gupta. Yet the respondents have chosen to affect service through Smt. Savita Rani which is illegal and incorrect inasmuch as Smt. Savita Rani is not the tenant

(iii) It is further urged that as per the report for registered post service, the refusal to accept service was by an employee. It is urged that an employee is not authorized to accept service. Reliance was placed on the judgments of this court passed in RC.REV. 507/2012 dated 04.10.2013 titled as Devender Nath vs. Mohd. Asim 204 (2013) DLT 141 and judgment in the case of Om

Prakash vs. Brij Nath Sharma, 18(1980) DLT 313 to support the contention.

(iv) It is also urged that as the respondents refused to accept the rent from the petitioners. The petitioners had filed a petition under Section 27 of the DRC Act and deposited rent in court. Notices were issued to the respondents but they never entered appearance nor filed objections. The court hence, disposed of the petition.

(v) It is submitted that earlier Smt. Savita Rani was the proprietor of the firm Ms/ Hindustan Petro Chemicals. However on 05.04.2005, this was changed. Reliance is placed on an application filed before the VAT Department to show that the proprietorship of the concern M/s Hindustan Petro Chemicals was changed.

8. Learned senior counsel appearing for the respondents has however pleaded as follows:-

(i) He has submitted that the reliance of the petitioners on the return filed before the VAT Department is misplaced. The address of the said M/s. Hindustan Petro Chemicals is of Narela and hence, he submits that the said document has no application.

(ii) He submits that the process server had gone to serve the petitioner. He has given his report that despite having visited the site two times, the son of Smt. Savita Rani refused to accept service. The process server was examined in court by the ARC and thereafter only, the summons was deemed to have been served.

(iii) He further submits that even the postal authorities have visited the premises eight times as is evident from the postal records placed on record.

He submits that there is deemed service on the petitioner by a registered post also.

(iv) It is further urged that it is admitted by the petitioners that the tenancy is of 1979. It is urged that as per the record the petitioner Sh. Gaurav Gupta was not even born in 1979 when the tenancy commenced. Hence, there can be no occasion for the said Sh. Gaurav Gupta to become a tenant.

9. The admitted fact is that both the parties admit that M/s/ Hindustan Petro Chemicals is the tenant. The petitioners admit that the tenancy commenced in 1979. As per the affidavit attached to the present revision petition, the petitioner Gaurav Gupta is 32 years old. Hence, he was not born in 1979 when the tenancy commenced. However, the petitioners have also admitted that till 2005, it was Smt. Savita Rani who was the proprietor of M/s Hindustan Petro Chemicals. It is their case that from 2005 onwards Sh. Gaurav Gupta has become the proprietor of the said concern i.e. M/s. Hindustan Petro Chemicals.

10. Legal position in this regard is settled. The phrase Sole Proprietorship is defined in Black‟s Law Dictionary (Eighth Edition), Pg. 1427 as follows:-

"Sole Proprietorship- 1. A business in which one person owns all the assets, owes all the liabilities and operates in his or her person capacity., 2. Ownership of such a business.-Also termed individual proprietorship."

11. Hence, a sole proprietorship is one that is run by a natural person. There is no legal distinction between the owner and the business entity. It is the owner who is in control of all the elements of the proprietorship.

12. When a property is given on rent in favour of the proprietorship, it is in fact the proprietor who is the „tenant‟. Where a proprietor is changed and a

new proprietor takes over the assets and liability of the proprietorship concern, it is implicit that a third party would take over the assets including the tenanted premises.

13. Under Section 16(3) of the DRC Act, after commencement of the Act, no tenant shall without the previous consent in writing of the landlord sub-let whole or part of the premises. Section 14(1) b of the DRC Act in fact specifically provides a ground for eviction of a tenant who has sub-let or parted with possession of the whole or part of the premises without obtaining the consent in writing of the landlord. In view of the settled legal position, it was Smt.Savita Rani the proprietor of M/s Hindustan Petro Chemicals who would remain the tenant of the tenanted premises. Sh. Gaurav Gupta could not be inducted as a tenant of the premises without the written consent of the respondents/landlords.

14. I may now deal with the issue of service of notice on the tenant of the eviction petition. Reference may be had to the provisions of Section 25B (3)

(a) of the DRC which reads as follows:

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

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(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.

xxx"

15. Hence, the landlord/respondent was obliged to serve summons on the tenant through Registered Post, Acknowledgement Due and through Ordinary Process at the place where the tenant actually and voluntarily carries on business or works for gain.

16. It may be noted that the Supreme Court in Prithipal Singh vs. Satpal Singh(supra) has held that Section 25B of the Act is a complete code by which the entire process to be adopted for eviction of a tenant on the ground of bonafide requirement filed by the landlord in respect of a premises shall be followed. The Supreme Court held as follows:

"22. Apart from that, as we have noted herein earlier, Section 25B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25B of the Act. Therefore, after insertion of Section 25B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25B and question of relying on Rule 23 of the Code, which also does not give full right to apply the provisions of the Code, could be applied."

17. In the present case the summons have been sent both by Registered AD Post and by ordinary process. The process server was also examined in court. He has in his statement made on oath in court on 15.09.2015 specifically stated that he visited the tenanted premises on 13.05.2015 and 23.05.2015 where he met Sh. Pankaj Gupta (would be Gaurav Gupta) who

told him that that he is the son of Smt. Savita Rani (petitioner No.1). The said Sh. Pankaj Gupta read the summons but did not accept the same asking the process server to come on some other day.

In addition to that, summons by Registered AD card cover were also sent to the tenant but came back where it is noted that the postman had gone seven times to the tenanted premises for the purpose of affecting service. The report is that despite repeated visits, the recipient was not available and the servants refused to take service. Hence, the were returned summons by the Postal Department.

18. The Supreme Court in the case of Gujarat Electricity Board and Anr. Vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433 held that where a registered AD Cover is returned with a report refused, a presumption of service arises. This was followed in the case of Parimal vs. Veena @ Bharti (2011) 3 SCC 545 where the Supreme Court held as follows:-

"17. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors., held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra.

18. In Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani, this Court held as under:

"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is

rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."

19. It is manifest from the report of the postal authorities and the process server that the petitioners i.e. Smt. Savita Rani and Sh. Gaurav Gupta both were duly served. Gaurav Gupta has refused the summons by ordinary process. The summons sent by Registered AD were refused, as per the report of postal authorities. Petitioners have deliberately tried to manipulate facts and tried to evade the process of the court. The ARC has rightly concluded that the petitioners were duly served with the summons and proceeded to pass an appropriate eviction order.

20. As the petitioners were duly served under Section 25(B) of the DRC Act, the petitioners were obliged to enter appearance and file their application for leave to defendant within fifteen days. This requirement is mandatory as stated by the Supreme Court in the case of Prithipal Singh v. Satpal Singh,(dead) through LRs (2009) 2 SCC 15. Needful not having done, the ARC has rightly passed an eviction order in favour of the respondents.

21. There is no merit in the present petition and same is dismissed.

22. All pending applications also stand dismissed.

(JAYANT NATH) JUDGE SEPTEMBER 22, 2017/rb