Delhi High Court
Raj Kumar Singh vs Veena Gupta Alias Beena Gupta on 19 July, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 08, 2024
Decided on: July 19, 2024
+ RC.REV 106/2024, CM APPLs. 22076/2024 & 37659/2024
RAJ KUMAR SINGH
..... Petitioner
Through: Mr. Madan Lal Sharma and
Ms. Tejaswini Verma,
Advocates
V
VEENA GUPTA ALIAS BEENA GUPTA
..... Respondent
Through: Mr. Ajay Gupta and
Mr. Anant Gupta, Advocates
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The respondent/landlady/owner (hereinafter referred to as "the
respondent") is claiming to be the owner/landlady of one shop
situated at ground floor and forming the part of the property bearing
Municipal no. 1468, Rang Mahal, Nahar Sadat Khan, S.P. Mukherjee
Marg, Delhi-110006 (hereinafter referred to as "the tenanted
Signing Date:30.07.2024 RC.REV. 106/2024 Page 1
premises") which the respondent had purchased from the previous
owner vide a registered sale deed.
2. The respondent stated that the tenanted premises is under the
occupation of the petitioner as tenant on a monthly rent of Rs.220/-
besides other charges which was stated to be let out for non-
residential purposes. The respondent filed an eviction petition under
section 14(1)(e) read with section 25B of the Delhi Rent Control Act,
1958 (hereinafter referred to as "the Act") on the ground of bona
fide requirement against the petitioner. The court of Ms. Pragati,
ARC-01, Central, Tis Hazari Courts, Delhi (hereinafter referred to as
the "trial court") vide order dated 22.05.2023 ordered for issuance
of summons to the petitioner as per the Third Schedule of the Act.
The respondent also filed an application under Order V Rule 20 read
with section 151 CPC for substituted service as the summons issued
to the petitioner were received back unserved with the report that the
premises was lying locked. The trial court vide order dated
21.09.2023 ordered for the service of the petitioner through
substituted service by way of publication in the Hindi daily
newspaper Veer Arjun on filing of PF and also by affixation of the
Signing Date:30.07.2024 RC.REV. 106/2024 Page 2
copy of the summons at a conspicuous place on court house and a
conspicuous part of the house wherein the respondent was lastly
residing or carrying on his business or was personally working for
gain.
3. The petitioner as reflecting from the order dated 02.12.2023 passed
by the trial court filed an application for leave to defend on
22.11.2023 i.e. after the expiry of the period of limitation of 15 days.
The trial court vide order dated 30.01.2024 (hereinafter referred to as
"the impugned order") dismissed the application for leave to defend
and accordingly passed an eviction order under section 14(1)(e) of
the Act in favour of the respondent and against the petitioner in
respect of the tenanted premises. The relevant portion of the
impugned order is reproduced verbatim as under:-
5. A perusal of the record shows that the respondent was
served by way of affixation on 14.10.2023. Although
affixation is not a mode of service under the provisions of
Section 25B of DRC Act yet what is important is that the
respondent was duly served by way of publication in a
newspaper under the orders of the Court on 16.10.2023.
It is also seen that a vakalatnama was filed on behalf of
the respondent on 14.10.2023. Thus, the respondent had
knowledge about the present case on 14.10.2023, even
before the service was effected through publication.
Signing Date:30.07.2024 RC.REV. 106/2024 Page 3
6. It is also to be observed that although the respondent has
stated that he had applied for certified copies yet neither
the date of application for certified copies has been
mentioned nor any such application has been filed on
record.
Even if, for argument sake the averment of the
respondent is considered that he had received the certified
copies on 06.11.2023 and only then he could have filed the
leave to defend yet no explanation has been given as to why
the respondent had not applied for a certified copy on an
earlier date, when he had notice of the present petition on
14.10.2023 itself. Moreover, it is also not explained as to
why the application for leave to defend was filed on
22.11.2023 and not immediately after obtaining the certified
copies. There is thus no explanation for this inordinate and
unreasonable delay on the part of the respondent.
7. Furthermore even if the period of time is computed
starting from 06.11.2023, the period of 15 days would lapse
on 21.11.2023. The application for leave to defend should
have been filed on or before 21.11.2023, yet the same has
been filed on 22.10.2023 and hence, by no stretch of
imagination can it be said that the leave to defend
application was filed within the prescribed period of time.
8. It is pertinent to note the judgement of the Hon'ble Apex
Court in Prithipal v Satpal (dead through LR's) 2010 (2)
SCC 15 in which it was held that there is no provision for
condonation of delay in filing of the application of the leave
to defend in proceedings under section 14(1) (e ) of the
Delhi Rent Control Act as the provisions of the Limitation
Act, 1963 could not be attracted.
9. Thus in view of the above discussion, the conclusion is
drawn that the leave to defend application has been filed
beyond the prescribed period of time and hence is
dismissed.
Signing Date:30.07.2024 RC.REV. 106/2024 Page 4
13. Section 25-B (4) of the Delhi Rent Control Act provides
that the tenant shall not contest the prayer for eviction
unless he files an affidavit stating the ground on which he
seeks to contest the application for eviction and obtains
leave from the Controller. Such leave for contesting has to
be sought within 15 days from service of summons. Since
such leave has not been sought within 15 days from service,
the assertions made by the landlord in the application for
eviction shall be deemed to be admitted by the tenant and
the petitioner shall be entitled for an order for eviction on
the said ground.
14. The respondents are therefore deemed to have admitted
the relationship of landlord and tenant between the
petitioner and the respondents. They are also deemed to
have admitted that the petitioner is owner of the tenanted
premises and requires the premises bonafide for her son
who is dependent upon the petitioner and that the
petitioner does not have any other reasonably suitable
accommodation for this purpose. Therefore, the eviction
petition is allowed and an eviction order is passed u/s 14(1)
(e) r/w Section 25-B of Delhi Rent Control Act in favour of
the petitioner and against the respondent in respect of the
tenanted premises i.e. 1468, Rang Mahal, Nahar Sadat
Khan, S. P. Mukherjee Marg, Delhi-110006, more
specifically shows in red color in the site plan filed with the
eviction petition.
3.1 The trial court while passing the impugned order also satisfied
itself that all the ingredients of section 14(1)(e) of the Act have been
made out in the petition. The petitioner being aggrieved filed the
present petition to challenge the impugned order.
4. The petitioner stated that the bare perusal of the eviction petition
would reflect that it does not comply with the essential ingredients of
Signing Date:30.07.2024 RC.REV. 106/2024 Page 5
the section 14(1) (e) of the Act. The petitioner was not validly served
with the summons in the eviction petition as provided under the Third
Schedule of the Act and the substituted service by way of publication
in the newspaper Veer Arjun is not a valid service as the copy of the
petition and the documents annexed with the petition were not duly
published as mandated by the law. The petitioner on 22.11.2023 had
filed an application for grant of leave to defend along with a detailed
affidavit wherein the plea was taken that the petitioner was not
validly served with the summons in eviction petition and service by
way of affixation is not the valid mode of service and the service by
way of publication in the newspaper Veer Arjun dated 16.10.2023 is
not a valid service.
5. Sh. Madan Lal Sharma, Advocate for the petitioner after referring
Prithipal Singh V Satpal Singh (Dead) through LR's, 2010 2 SCC
15 and Directorate of Education & another V Mohd. Shamim &
others, 266 (2020) DLT 1 (DB) argued that the delay in filing the
application for leave to defend, if any, be condoned and the counsel
for the respondent argued to the contrary.
Signing Date:30.07.2024 RC.REV. 106/2024 Page 6
6. It is reflecting that the petitioner was ordered to be served by way
of publication vide order dated 21.09.2023 and was stated to be
served by way of publication in newspaper Veer Arjun published on
16.10.2023. The petitioner filed the application for leave to defend on
22.11.2023.
7. Chapter III-A of the Act deals with summary trial of certain
applications. Section 25B of the Act deals with special provision for
the disposal of application for eviction on the ground of bona fide
requirement. Section 25B(1) of the Act provides that the application
for eviction on the ground of bona fide requirement shall be dealt
with in accordance with the procedure specified under section 25B.
Sub-section (2) also provides that the Controller shall issue the
summons in relation to every application as referred in sub-section
(1) in the form specified in the Third Schedule. Sub-section (3)
provides that the summons are required to be serviced 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. It further provides that the summons may
Signing Date:30.07.2024 RC.REV. 106/2024 Page 7
also be issued by way of publication 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. Sub-section (4) further
provides that the tenant on whom the summons is duly served in the
form specified in the Third Schedule shall not contest the prayer for
eviction from the premises unless he files an affidavit stating the
ground on which he seeks to contest the application for eviction and
obtains leave from the Controller. It further provides that in default of
the appearance in pursuance of 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 of bona fide
requirement.
8. The appellant/landlord in case of Prithipal Singh V Satpal Singh
(Dead) through LR's, 2010 2 SCC 15 filed an eviction petition
under section 14(1)(e) of the Act for eviction of the respondent and
summons were issued in compliance of section 25B(3)(a) of the Act
to the respondent. The respondent/tenant filed an affidavit by way of
an application praying for leave to defend the eviction petition after a
Signing Date:30.07.2024 RC.REV. 106/2024 Page 8
delay of 08 days from the date of service of the notice upon him. The
Additional Rent Controller had dismissed the application for leave to
defend by holding that the Additional Rent Controller under the Act
does not have power to condone the delay in filing the affidavit and
accordingly, the prayer for leave to defend was rejected and an
eviction order was passed. The respondent being aggrieved filed an
application for setting aside the eviction order under Order IX Rule
13 read with Order XXXVII Rule 4 read with section 151 CPC and
prayed for leave to defend the eviction proceedings after condoning
the delay in filing the same. The Additional Rent Controller had
allowed the application for setting aside the ex parte order for
eviction. The appellant/landlord being aggrieved by the order of
Additional Rent Controller filed a petition under Article 227 of the
Constitution before this Court, which was dismissed by this Court
while observing that the Additional Rent Controller may not have
power to condone the delay in seeking the leave to defend but once
the eviction order was passed, the Additional Rent Controller can set
aside the order of eviction and restore the prayer for leave to defend
the eviction proceedings by resorting to Order IX Rule 13 read with
Signing Date:30.07.2024 RC.REV. 106/2024 Page 9
Order XXXVII Rule 4 read with section 151 CPC. The Supreme
Court after considering the provisions as contained under section 25B
of the Act observed that the power was not conferred on the Rent
Controller to entertain the application for condonation of delay in
filing the application for leave to defend.
9. The counsel for the petitioner also referred the judgment delivered
by the Division Bench of this Court in Directorate of Education &
another V Mohd. Shamim & others, 266 (2020) DLT 1 (DB)
wherein it was held as under:-
25. We, therefore, hold that merely because the Controller
has passed an order of eviction in a proceeding governed
under Section 25B, on failure of the tenant to, within the
prescribed time, apply for leave to defend and merely
because the Controller vide Prithpal Singh( supra) has been
held to be not empowered to recall the said order, would
not prevent this Court from, in exercise of powers under
proviso to Section 25B(8), considering once a case for the
landlord to be not entitled to an order of eviction to be
deemed admission following non-filing of leave to defend
within the prescribed time, the said order cannot be said to
have been made according to law and would qualify as
being contrary to law and liable to be set aside.
26. Having held so, we answer the question No. (A) framed
in the referral order in the affirmative and with the
condition that this Court would be empowered to set aside
the order of eviction only if the tenant passes the dual test
of prevented by reasons beyond control from applying for
leave to defend within the prescribed time (as distinct from
every default) and if makes out a substantial case for
Signing Date:30.07.2024 RC.REV. 106/2024 Page 10
consideration of the application for leave to defend. We,
however, in deference to Prithipal Singh supra choose/opt
to not answer the question (B) framed in the referral order.
10. The Third Schedule of the Act prescribes form of summons in a
case where recovery of possession of premises is prayed for on the
ground of bona fide requirement. The form of summons also
mandated that copy of application for recovery of possession is also
mandated to be annexed with the application for recovery of
possession. In the present case, only the summons as per the Third
Schedule of the Act was published in the newspaper Veer Arjun on
16.10.2023 but the copy of the application for recovery of possession
on ground of bona fide requirement i.e. the eviction petition was not
published, as such service of summons cannot be stated to be the
complete service of the summons as prescribed under the Third
Schedule of the Act.
11. The petitioner also alleged that he suffered because of the
negligence of the previous counsel who filed the application for leave
to defend on 22.11.2023 without filing an application for condonation
of delay and the petitioner cannot be allowed to suffer due to the
negligence of his previous counsel. The petitioner in the application
Signing Date:30.07.2024 RC.REV. 106/2024 Page 11
for leave to defend filed before the trial court had mentioned that the
respondent does not require the tenanted premises bona fide and the
respondent has not disclosed the relevant facts which may disentitle
the petitioner for the grant of leave to defend. The petitioner also
stated that the respondent is having other accommodation as reflected
from the Sale Deed dated 30.06.2009 on the basis of which the
respondent is claiming the ownership rights qua the tenanted
premises.
12. It is reflecting that the petitioner was not properly served with
the summons as per the Third Schedule of the Act and has also raised
certain issues which may require consideration of the trial court while
deciding the application for leave to defend. The petitioner has as
such satisfied twin test as laid down by the Division Bench of this
court in Directorate of Education & another V Mohd. Shamim &
others.
13. The petition is accordingly allowed and the delay in filing the
application for leave to defend is condoned. The Additional Rent
Controller is also directed to decide the application for leave to
defend independent of any observation made in this order and
Signing Date:30.07.2024 RC.REV. 106/2024 Page 12
preferably within a period of 03 months from the date of receipt of
this order. The present petition along with pending applications
stands disposed of.
14. The petitioner and the respondent are directed to appear before
the trial court on 30.07.2024 at 2:30 pm for further directions.
DR. SUDHIR KUMAR JAIN
(JUDGE)
JULY 19, 2024
N/AK
Signing Date:30.07.2024 RC.REV. 106/2024 Page 13
