Delhi District Court
Amina Begum vs Sharifuddin on 1 December, 2014
IN THE COURT OF SH. A.K. CHAWLA : RENT CONTROL
TRIBUNAL: DELHI
RCT - 138/2013
Unique Case ID No.02401C0415442011
1. Amina Begum
W/o Shri Gayasuddin
2. Cheenu
S/o Sh. Gayasuddin
3. Nasir
S/o Sh. Gayasuddin
4. Abid
S/o Sh. Gayasuddin
All R/o 6363, FirstFloor,
Ward No.14, Gali Babu Bashat,
Qasabpura, Sadar Bazar,
Delhi -110 006. ..... Appellants
Versus
Sharifuddin
S/o Shri Samsuddin
R/o 6360 to 6362,
Gali Babu Bashat,
Qasabpura, Sadar Bazar,
Delhi -110 006.
ALSO AT :
H. No. 5084, 1st Floor,
Gali Masjid Chhappar Wali,
Qasabpura, Sadar Bazar,
Delhi -110 006. ..... Respondent
Date of Institution : 08.09.2011
Date of pronouncement : 02.12.2014
RCT- 138/13 Page 1/8
JUDGMENT
Appeal is preferred against order dated 29.8.2011 passed by the ld. ARC, whereby, an application filed by the appellants U/o 9 R. 13 CPC in short 'the said application' was declined.
2. Succinctly stated, the facts relevant for the disposal of the appeal are that the respondent had filed an eviction petition U/s 14(1)
(e) read with Section 25B of the Delhi Rent Control Act in short 'the DRC Act' against the appellants in respect of two rooms, latrine, bath, kitchen, courtyard at first floor of house no. 6363/XIV, ground floor, gali Babu Bashat, Qasabpura, Sadar Bazar, Delhi more specifically shown in the plan filed with the petition in short 'the subject premises'. It proceeded on the premise that the appellants were the statutory tenants in a portion of the property of which 'the subject premises' forms a part and that, the respondent now required atleast 20 rooms for living, one dining room, one prayer room, one study room, one guest-cum-drawing room, three rooms for his married daughters and other relatives, who occasionally visit the respondent and his family apart from store, kitchen, latrine and bathroom, while presently he was in possession of only six rooms of the house. RCT- 138/13 Page 2/8 Appellants were stated to be the successors-in-interest after the demise of the contractual tenant Sh. Gyasuddin, who was the husband of the appellant no.1 and the father of the appellant nos. 2 to 4. Summons were issued in the form specified in the Third Schedule as provided for U/s 25B of 'the DRC Act'. These were received back with the report of service of such summons on the appellant no.2 for himself as also on behalf of the other appellants on 29.1.2010 and in the absence of any application for grant of leave to defend having been filed, eviction order followed on 19.4.2010. After the expiry of the statutory period of six months, execution petition came to be filed and warrants of possession of 'the subject premises' came to be issued. On 13.1.2011, 'the said application' came to be filed. It proceeded on the premise that on 14.12.2010, the bailiff had visited the subject premises in execution of the eviction order and since the appellant no.1 was shocked and surprised of getting to know of the execution proceedings, she had put her thumb impression on a paper as per the instructions of the bailiff, being an illiterate lady. That, thereafter, the appellants engaged a counsel, who inspected the file on 12.1.2011 and then only, the appellants came to know that the respondent had played fraud upon the Court and obtained an ex-parte decree in collusion and RCT- 138/13 Page 3/8 connivance with the process server and that, the signatures on the report/summons were forged and manipulated by the respondent. They also averred that since none of the appellants had ever received any notice/summon issued by the Court either through post or through process server at any point of time, the absence of the appellants before the ld. ARC was neither intentional nor willful. Thus, the appellants sought ex-parte eviction order dated 19.4.2010 to be set aside. Respondents filed their reply and opposed the prayer made. In the reply filed, the respondent took the preliminary objections viz. 'the said application' was barred by time and was not supported by any application for condonation of delay; 'the said application' was not moved or signed by all the parties; appellants had falsely stated that the decree holder had obtained the decree by fraud in collusion and in connivance with the process server and the signatures on the report/summons were forged and fabricated and that, such disclosure was highly objectionable and amounts to contempt of Court; appellants have no prima facie case in their favour; and, the application was the misuse of the process of law. On merits, the respondent stated the averments and the allegations made in the application to be wrong, false and incorrect. It was also averred that RCT- 138/13 Page 4/8 the signatures on the summons dated 29.1.2010 of any adult family members, were the best acknowledgment of receiving the notice/summon and that, the signatures on the present application under reply and vakalatnama and the summons were the same. Also, according to the respondent, the appellants were already aware of the eviction order passed on 19.1.2010, but, never opted to contest the eviction petition or raised objection within the limitation period. Vide the impugned order, 'the said application' came to be dismissed by the ld. ARC. Aggrieved thereof, the appellants have preferred the appeal in hand.
3. I have heard the ld. Counsel for the parties and perused the record carefully.
4. In para-4 of 'the said application', appellants averred as follows :
"That thereafter the respondents engaged a counsel, who inspected the case file on 12.01.2011 and then the respondents came to know that the petitioner by playing a fraud with this Hon'ble Court succeeded to obtain ex- parte decree from this Hon'ble Court in collusion and connivance with the process server. The signature put on the report/summon of process server is forged and manipulated by the petitioner. Since none of the respondents have ever received any notice/summon RCT- 138/13 Page 5/8 issued by this Hon'ble Court either through post or through process server at any point of time."
Above-said averments are supported by the respective affidavits of all the four appellants. In the corresponding para-4 of the reply, respondent on its part however, averred as follows :
"That the application under reply is not maintainable being not moved or signed by all concerned parties, even no proper vakalatnama is on record, hence the application is not maintainable and is liable to be dismissed"
Specific averments made in para-4 of 'the said application' are not specifically denied to in the corresponding para-4 of the reply, though, in para-5 of the preliminary objections and para-2 of the reply on merits, the respondent avers for the appellants having made false disclosure for the decree having been obtained by fraud in collusion and in connivance with the process server and that the signatures on the report/summons were forged and fabricated and that, the signatures of an adult member on the summons were the best acknowledgment and that the signatures on the present application under reply and the vakalatnama and the summons were the same.
Was there any specific denial of the averments duly supported by the respective affidavits of the appellants, to the effect RCT- 138/13 Page 6/8 that the signature put on the report/summon of the process server was forged and manipulated and that, none of the appellants had ever received any notice/summon either through post or through process server at any point of time, was the first and the foremost aspect to be gone into by the ld. ARC. On the perusal of the impugned order, I however, observe that the ld. ARC did not even advert to this material aspect in any manner at all. Assuming, there was any implied denial of such fact, it, invited adducing of evidence to establish such fact and for the purpose, parties were then required to be granted opportunities to establish their respective assertions. Ld. ARC failed to follow so equally. It is interesting to note that the report of the process server, is totally silent about the identification of the person who received the summons inasmuch as, it simply records for the summons having been received by a person namely Cheenu Ibrahim, as such person disclosed so to the process server. In other words, the purported service has come to be effected without identification for the person receiving summons. Ld. ARC failed to note even this vital aspect equally. It reflects very callous approach of the ld. ARC in accepting the due service of summons on the appellants, especially in view of that fact that the proceedings RCT- 138/13 Page 7/8 initiated U/s 14(1)(e) entail serious consequences for the default in not preferring an application for leave to defend. Though, the respondent in the reply to 'the said application' has stated that the signatures appearing on 'the said application' and the vakalantnama and the summons were the same, the signatures in Urdu on the summons and that on 'the said application' and the vakalatnama, apparently, do not seem to be similar. Not only that, the ld. ARC did not even advert to the question of limitation. Disposal of 'the said application' in the given facts and circumstances, I therefore, find to be perverse and not sustainable.
5. In view of the foregoing, I accept the appeal and set aside the impugned order and remand the matter back to the ld. ARC to look into the question of limitation in filing 'the said application' and in the event of condonation, if any, frame issues on the relevant facts and affording opportunities to the parties, decide 'the said application' afresh on merits.
Announced in the open Court (A.K. Chawla)
on this 2nd day of December, 2014 Rent Control Tribunal
Delhi
RCT- 138/13 Page 8/8