Delhi High Court
Asha vs Suraj Bhan on 5 March, 2018
$~4 & 41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th March, 2018
+ CM(M) 954/2015
SURAJ BHAN ..... Petitioner
Through: Mr. Deepak Sharma & Mr.
Manish, Advocates.
versus
ASHA ..... Respondent
Through: Mr. Jai Bansal, Advocate
+ RC.REV. 39/2018 & CM No. 4377/2018
ASHA ..... Petitioner
Through: Mr. Jai Bansal, Advocate
versus
SURAJ BHAN ..... Respondent
Through: Mr. Deepak Sharma & Mr.
Manish, Advocates.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. Both these petitions arise out of the proceedings relating to the
eviction case (E No. 68/2014 - new ARC 25867/2016) registered on
the application of Suraj Bhan (landlord) who is petitioner in CM (M)
954/2015 and respondent in RC Rev.39/2018 - seeking an order of
eviction on the ground of bona fide need under Section 14 (1) (e) of
Delhi Rent Control Act, 1958 which is governed by the special
procedure envisaged in Section 25 B of the said enactment, such
proceedings being directed against Asha (concededly a tenant) in the
premises in question.
2. It appears the tenant had earlier filed an application for leave to
defend in the afore-said proceedings on 20th August, 2014, the
landlord having raised the issue of such application having been filed
belatedly beyond the statutorily permissible period of 15 days after
service in terms of Section 25 B of Delhi Rent Control Act, 1958. The
objection about the application for leave to defend being filed
belatedly and hence not maintainable was considered by the
Additional Rent Controller and rejected by order dated 25.08.2015
which was challenged by the landlord by CM (M) 954/2015.
3. Later, however, the new presiding officer in the Court of
Additional Rent Controller reconsidered the said issue and by order
dated 16.08.2017, observed that the application for leave to contest
was belated not having been presented within the statutorily
permissible period of 15 days after service. He also went into the
merits of the application for leave to defend and returned a finding that
no triable issues had been raised, consequently passed an order of
eviction on 16.08.2017 which is challenged by the tenant by RC Rev.
39/2018.
4. The issue to be considered in these proceedings, thus, is as to
whether the application for leave to defend concededly submitted on
20.08.2014 was within the statutory period of 15 days after service or
not.
5. The learned counsel on both sides have been heard and the
record has been perused with their respective assistance.
6. It is seen from the record that the eviction petition came up
before the Additional Rent Controller for the first time on 07.06.2014.
It was kept for consideration on 25.07.2014. The Additional Rent
Controller was satisfied that a case had been made out for special
summons to be issued in the form prescribed under Schedule-III,
Delhi Rent Control Act, 1958 relatable to Section 25 B. He thus,
directed such summons to be issued upon steps to be taken inclusive
of filing of registered cover, the process to be returnable on
27.09.2014. The process in terms of the said direction under Section
25 B, was issued on 28.07.2014, cautioned the tenant that she would
be required to appear before the Rent Controller within 15 days of the
service and to obtain leave of the Rent Controller to contest the
application for eviction and further that in case of default of such steps
being taken, the applicant landlord would be held entitled at any time
after expiry of the said period of 15 days to obtain an order of eviction
from the subject premises. Concededly, the process was duly served
on the tenant personally on 03.08.2014, the process server having
made a statement to this effect on the basis of process server report
(Ex. PS-1/A) on 28.10.2014.
7. Since the order had directed the attempt of service through
additional mode of registered post acknowledgement due (RCAD)
another summons under Section 25 B of Delhi Rent Control Act had
also been sent by such mode. The report of the postal official on the
said registered cover indicates an attempt was made for service on 5,6
& 7 August, 2014 but the premises was found locked and, thus, the
postal article could not be delivered.
8. It is against the above backdrop that the landlord prayed before
the Additional Rent Controller that the tenant having been served
personally on 03.08.2014, the application for leave to defend which
was supported by affidavit of the claimant sworn on 20.08.2014 had
been filed belatedly and the Additional Rent Controller having no
power to condone the delay, order of eviction should follow. The
Additional Rent Controller considered this submission but rejected the
contention of the landlord referring in this context to ruling of learned
single judge of this Court in Frank Anthony Public School vs. Amar
Kaur ,1983 (2) RCR 544, observing that service through both the
modes under Section 25-B of Delhi Rent Control Act was
"compulsory" and since attempt had been made to serve through the
postal article on 05.08.2014, the submission of the leave to defend
application on 20.08.2014 was within time.
9. The above view taken by the Additional Rent Controller in light
of the ruling of the learned Single Judge of this Court in Frank
Anthony Public School (supra) is apparently wrong. The issue is
covered by a decision of division bench of this Court in RC Rev.
242/2013 Ashok Kumar vs. Purshotam Lal Verma decided on
22.09.2016, it being a matter arising out of a reference made by a
learned Single Judge of this Court by order dated 12.05.2015 wherein
the following questions of law were raised:-
"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?"
10. The division bench answered the reference thus:
"1. Both modes of service are mandated and have to be
resorted to simultaneously by the Controller. However, if
service through one mode is completed or successful, that
is deemed sufficient, irrespective of whether the other
mode is successful or not.
2. In case the tenant is served by both the modes, the
period of 15 days for filing the leave to defend has to be
counted from the first date of service. Time, for the
purpose of filing leave to defend, does not depend on the
second service of summons".
11. The above ruling, particularly in the context of first question
referred for decision, leaves no room for doubt that in the present case,
the period to be counted for submission of the application for leave to
defend would begin with reference to the date of personal service on
the tenant i.e. 03.08.2014. The date of service i.e. 03.08.2014 has to be
discounted and the period would commence from the next day. Thus,
it is clear that the submission of the application for leave to defend on
20.08.2014 (concededly, a Wednesday) is beyond the period of 15
days.
12. In above facts and circumstances, the order dated 25.08.2015
rejecting the objection of the landlord on the ground of belated
application for leave to defend being entertained must be set aside.
Ordered accordingly. In the result, the petition of the landlord CM
(M) 954/2015 - deserves to be allowed, the only consequence of this
order would be that an eviction order should have followed and now
must follow against the tenant. In this view, the opinion expressed by
the Additional Rent Controller in the subsequent order dated
16.08.2017, particularly, on the question of the application for leave to
defend being belated and, therefore, impermissible must be upheld.
Ordered accordingly.
13. In above view, there is no need to go into the merits of the
contentions raised in the application for leave to defend. The order of
eviction passed in the present case, thus, will be treated as an eviction
order on account of default on the part of the tenant to timely submit
her application for leave to defend.
14. The interim order of stay against execution of the eviction order
is vacated. The tenant's petition is dismissed.
15. Both the petitions and the pending application filed therein
stand disposed of in above terms.
R.K.GAUBA, J.
MARCH 05, 2018
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