Delhi High Court
Surinder Singh vs V.K. Jain And Anr. on 31 August, 1990
Equivalent citations: 42(1990)DLT365, 1990(19)DRJ198
JUDGMENT Sunanda Bhandare, J.
(1) This Civil Miscellaneous (Main) petition has been filed by the petitioner-landlord who filed an petition in the court of Additional Rent Controller, Delhi under Section 14(1)(e) read with Section 25-(B) of the Delhi Rent Control Act (hereinafter referred to as the Act).
(2) The brief facts are as follows :- The petitioner filed an eviction petition on 13-2-1987 against the respondent. The Additional Rent Controller issued summons as provided under Section 25B(2) and 3(a) of the Act to the respondent by ordinary process as well as by registered A.D. post. The summons were served on the respondent by ordinary process on 22-3-1987 but the registered A.D. summons could not issue because of shortage of postal stamps on registered A.D. cover. The eviction petition was listed before the Additional Rent Controller on 27-5-1987 and the petitioner prayed that eviction order be passed because the respondent had not chosen to file an application for leave to defend within the prescribed time. The Addl. Rent Controller by his order dated 7-5-1987 observed that since Section 25-B(3)(a) provides that summons be issued even by registered A.D. post and the summons could not be issued because of paucity of stamps it was necessary that the respondent be served by registered A.D. post as well. He. therefore, directed issuance of summons to the respondent by Registered AD. post again. Accordingly, the petitioner took steps to get the respondent served again by ordinary process as well as by registered A.D. post The respondent was again served by ordinary process on 26-12-1987 but the A.D. card was not received back. The Addl. Rent Controller did not consider that to be sufficient service on the respondent and again directed fresh summons to be issued to the respondent. The petitioner, therefore, took steps to ensure that the summons were duly served on the respondent and ultimately on 9-1-1988 got the summons served on the respondent by registered A.D. post. The A.D. card was filed in court. The Additional Rent Controller in his order dated 3-2-1988 took note of service on the respondent by registered A.D. post. Inspite of this service of summons neither the respondent filed appearance nor filed an application for leave to defend The case was again listed before the Additional Rent Controller on several dates thereafter till 1-6-1988 but the Additional Rent Controller refused to pass an order of eviction though the respondent had neither filed appearance nor any application for leave to defend. Thereafter, of course the file was sent to this Court because the petitioner feeling aggrieved by the procedure adopted by the Addl. Rent Controller filed the present petition.
(3) It was contended by the learned counsel for the petitioner that Section 25-B of the Act requires summons to be issued both by ordinary process as well as by registered A D.cover However, Sub-section (4) of Section 25B provides that service of summons either by ordinary process or by registered A.D. post is .enough and if the tenant defaults in putting in appearance in pursuance of the summons and does not file an application for leave to defend and contest the eviction petition, the Controller is required to proceed with the cage and pass an eviction order 'forthwith, Learned counsel submitted that in any event on 26-12-1987 when the summons were served on the respondent on the by ordinary process the Addl. Rent Controller need not have waited for service report by registered A.D. post and ought to have proceeded to pass an order of eviction.
(4) It will be useful at this stage to refer to certain subsequent facts. The present petition came up for hearing before this Court for the first time on 4-4-1988 on which date notice to show cause was issued to the respondent, why the petition be not admitted for 10-5-1988. Show Cause Notice was duly served on the respondent, however he did not choose to enter appearance on 10-5-1988 and the petition was admitted on that date Thereafter, notice of admission of the petition was issued to the respondent which was also duly served on the respondent. The petitioner then moved and application for early bearing on which notice was issued to the respondent which was duly served. The respondent however did not file appearance in this Court. ' Thereafter, an actual date was fixed for the bearing of the petition and actual notice was directed to be issued to the respondent as per orders of this Court dated 31-8-1988. The respondent has still not chosen to enter appearance. Under the circumstances there is no appearance for the respondent today.
(5) From the conduct of the respondent it is clear that be has been avoiding appearing in court and in that way is successful in getting the disposal of the eviction petition delayed. That apart I find great force in the contention of the learned counsel for the petitioner that once the summons are issued both by ordinary process as well as by registered A.D. post as provided under Section 25-B(3) and (3)(a) even if the summons are served only by one means that satisfies the requirement of law. This position is clear from Sub-section (4) of Section 25-B of the Act which reads as follows: "(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 Scheduled shall not contest the prayer for eviction from the premises unless be files an affidavit slating 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."
(6) From the facts above it is clear that the respondent was served by ordinary process on 22-3-1987, and thereafter on 26-12-1987. In my view, it was not necessary for the Additional Rent Controller to direct further issuance of summons on the respondent after the summons were duly served both by ordinary process as well as by the registered A.D. post. The respondent has neither entered appearance nor filed an application for leave to defend Thus. once summons were served by any of the two means prescribed by the statute, the Controller .was duty bound to pass an order of eviction an provided under Section 25-B(4) of the Act. In my view the Additional Rent Controller has not taken action as required under the law.
(7) In the circumstances, the petition is allowed. The file be sent back to the Additional Rent Controller with the direction to pass an order as provided under Section 25B(4) of the Act. The petitioner is directed to appear before the Additional Rent Controller on 17-9-1990. Trial court record be sent back forthwith.