Delhi District Court
Act, 1958 Titled "Arun Grover & Ors. vs . Smt. Anju & Ors." Bearing on 3 December, 2019
1
IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
M-39/12 (New No.59630/16)
Unique Case DLCT03-000263-2012
03.12.2019
ORDER
1. An eviction petition under Sections 14(1)(e) of the Delhi Rent Control Act, 1958 titled "Arun Grover & Ors. Vs. Smt. Anju & Ors." bearing E.No.199/11 was filed. Since the respondents did not seek leave to defend the case, by order dated 23.01.2012, the Ld. Predecessor of this Court allowed the eviction petition and eviction order was passed against the respondents in respect of a shop bearing no. 3 and garage bearing no. 5 in premises no. 922/23, Desh Bandhu Gupta Road, Faiz Road, Karol Bagh, New Delhi-110005 as shown in red color in the site plan filed alongwith eviction petition (hereinafter referred to as the 'tenanted premises'). For execution of the eviction order dated 23.01.2012, execution petition bearing Ex.No.72/2012 was filed. The Ld. Predecessor of this Court ordered issuance of warrants of possession alongwith police aid and permission to break open the locks. The warrants were executed and the decree holders obtained possession of the tenanted premises on 21.08.2012. The execution petition was disposed off as M. No.39/12 (New No.59630/16) Page 1 of 17 2 satisfied. Thereafter, the respondents filed an application under Sections 25-B (7) and 37(1) of the Delhi Rent Control Act and Rule 23 of the Delhi Rent Control Rules r/w Order 37 (4) and Order 9 Rule 13 and Section 151 Code of Civil Procedure r/w Section 144 of Code of Civil Procedure dated 03.09.2012. This order shall dispose off the said application.
2. It is stated in the application that the respondents were never served with the summons of the eviction petition issued by the Court. It is averred that the summons were sent on the address of the tenanted premises which are shops and not the residence of the respondents. It is pleaded that none of the respondents have been residing in the tenanted premises which is a commercial premises. It is submitted that the reports of service of processes are managed and have been procured at the instance and in collusion with the petitioners.
3. It is stated that it is mandatory that the summons be served personally on the respondents. Also, there are no witnesses to the service.
4. It is stated that the petitioners have impleaded one Smt. Anju as respondent no. 1. However, there is no daughter by this name of Late Mr. Gopal Dass Arya. It is pleaded that the petitioners are aware about the M. No.39/12 (New No.59630/16) Page 2 of 17 3 addresses of the respondents who are married daughters of Late Mr. Gopal Dass Arya. However, the petitioners did not provide the residential addresses of the respondents. It is averred that the petitioners have deliberately provided the name of the respondent no. 1 as Anju so that the respondents do not get to know about the eviction petition filed on false grounds. It is stated that the correct name of the daughter of Late Mr. Gopal Dass Arya is Smt. Manju.
5. The names of the husbands and the residential addresses of all the respondents have been provided in the application and it is stated that the petitioners are aware about these addresses.
6. It is stated that even the initials put on the AD card were managed and procured by the petitioners for showing the service of summons. It is pleaded that the registered AD cover was never presented to the respondents for service any any time. Also, the registered AD covers were sent at the wrong address where the question of residence of the respondents does not arise. It is stated that the initials on the AD cards are not decipherable and have not been signed by any of the respondents.
7. It is stated that the summons sent to the respondent no. 2 Smt. Ritu were not served upon her. It is denied that Smt. Ritu was present at the M. No.39/12 (New No.59630/16) Page 3 of 17 4 tenanted premises on 08.11.2011.
8. It is stated that the summons sent to the respondents no. 3 and 4 were purportedly received by Ms. Anju. However, there is no daughter of Late Mr. Gopal Dass Arya by this name. Therefore, the question of a lady named Smt. Anju being present at the property does not arise and summons were never really presented for service upon respondents no.3 and 4.
9. It is stated that it is only after execution of warrants of possession that the respondents learnt about the eviction petition filed against them. It is prayed that the eviction order dated 23.01.2012 be set aside and possession of the tenanted premises be restored to the respondents.
10. Reply to the application has been filed. It is stated in the reply that provisions of Code of Civil Procedure are not applicable since the Delhi Rent Control Act is a self contained legislation. It is averred that the respondents were served with the summons and only thereafter ex-parte orders were passed against them.
11. It is stated that a person can be known by any name and sometimes by number of names. It is averred that sometimes persons change their name for their own convenience which might have happened in the present case. It is M. No.39/12 (New No.59630/16) Page 4 of 17 5 pleaded that the name of respondent no. 1 was known to the petitioners as Anju.
12. It is stated that summons were duly served upon respondents and instead of appearing before the Court, they were busy in bargaining with the petitioners. It is submitted that the summons served were initialed by one of the respondents. It is stated that the respondents are real sisters and one of them accepted the service of summons. It is pleaded that it is not mandatory to serve upon the respondents individually.
13. The respondents filed rejoinder to the reply of the petitioners and denied the averments made in the reply of the petitioners and simultaneously reiterated and reaffirmed the contents of their application.
14. Arguments have been heard and the record has been perused. The argument of the Ld. Counsel for the petitioners that this Court is not empowered to decide if summons were duly served upon the respondents and if not, on that basis recall the eviction order, since provisions of Code of Civil Procedure are not applicable, is not tenable in view of the decisions of the Hon'ble High Court of Delhi passed in the cases of Kalawati Devi Vs. Kasturi Devi RC Rev. No. 110/2016 dated 31.01.2017, A.P. Jain Vs. Rajesh M. No.39/12 (New No.59630/16) Page 5 of 17 6 Gupta RC Rev. No. 223/2010 dated 30.03.2012 and Tharia Ram Vs. Chitra Devi 1983 (23) DLT 393. In view of these decisions of the Hon'ble High Court, this Court has the jurisdiction to decide whether the summons were duly served upon the respondents and if not, set aside the eviction order and restore the possession of the tenanted premises to the respondents.
15. Ld. Counsel for the petitioners has argued that this Court while deciding the application under consideration cannot look into the record of the eviction petition including the reports of the Process Server and the AD Cards since these have not been proved in evidence by either of the parties. This Court not in agreement with this submission of the Ld. Counsel. The reports of the Process Servers form part of the judicial record of the eviction petition in which the present application under consideration has been filed. There was no requirement for either of the parties to prove the AD cards and the Process Server reports, to enable this Court to consider these documents while deciding if there was valid service of summons upon the respondents. The file of the eviction petition has been tagged with the file of the application under consideration. Merely because the application has been registered separately and under a different number does not bar the Court from taking into consideration the record of the eviction petition.
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16. The contention of the petitioners that the respondents are real sisters and it is not mandatory to serve all of them individually is contrary to the law. Order 5 Rule 11 of Code of Civil Procedure provides that where there are more than one defendants in a case, service of summons is required to be made on each defendant.
17. The summons addressed to respondents no. 3 and 4 were admittedly not served upon them personally. As per the report of the process server, it was one Anju who he met for effecting service upon respondents no. 3 and 4. The Hon'ble High Court of Delhi in the case of Subhash Anand Vs. Krishan Lal & Anr. 27 (1985) DLT 269 held that summons which are not addressed to any agent empowered to accept service on behalf of the tenant cannot be served upon the agent. It was held that if summons are addressed to the tenant, the acknowledgement due cannot be signed by anybody except the tenant. It was further held that the agent can accept the process only if it is addressed to such agent.
18. It is not in dispute that the summons sent to the respondents no. 3 and 4 were addressed in their names only and were not addressed to their purported agent Ms. Anju. As such, the processes had to be served upon respondents no. 3 and 4 only and could not have been accepted by Ms. Anju M. No.39/12 (New No.59630/16) Page 7 of 17 8 on their behalf.
19. Even Rule 1 of Part-B of Chapter VII of the Delhi High Court Rules (Practice & Procedure) provides that every attempt should be made to effect personal service in the first instance and failing that service is to be effected on an agent or a member of the family. It is prescribed in this rule that the Process Server should go again and again for this purpose and should obtain on each successive attempt at service, attestation of witnesses different from those who have attested reports of previous attempts.
20. In the present case, it is evident from the reports of the Process Server that he only went once at the premises of which address was provided for effecting service of summons. It is evident that he did not make efforts to effect personal service upon respondents no. 3 and 4.
21. Order 5 Rule 15 of Code of Civil Procedure empowers the Process Server to serve summons on any adult member of the family provided that at the time of service, the defendant is absent from his residence, when service of summons is sought to be effected and there is no likelihood of him being found at the address within a reasonable time and he has no agent empowered to accept service. There is no finding of the Process Server that M. No.39/12 (New No.59630/16) Page 8 of 17 9 there is no likelihood of the respondents being found at the address within a reasonable time and that there was no agent of the respondents empowered to accept the service. Therefore, the Process Server could not have served the process on any adult family member of the respondents.
22. Appendix-1 to the Chapter VII of the Delhi High Court Rules (Practice & Procedure) prescribes the affidavit of the Process Server which has to accompany the report of the Process Server. The Process Server is required to obtain signatures of the person to whom he serves the summons and also of witnesses and of the person who identifies the person who receives the summons. In none of the reports of the Process Server, there are signatures of the persons who the Process Servers allegedly met at the address of the respondents. There is no mention of any witnesses or of any person who identified the persons who were allegedly found by the Process Server at the property. The report of the Process Server is not even accompanied by an affidavit as has been prescribed in Appendix-1 of Chapter VII of the Delhi High Court Rules. Rule 4 of clause (b) of part B of Chapter 7 of Delhi High Court Rules prescribes that before passing an eviction order, the Court should make it a point that the affidavit provided in appendix-1 to the Chapter 7 has been duly filled in and is accompanying the report of the Process Server. In the M. No.39/12 (New No.59630/16) Page 9 of 17 10 case of Arjan Singh Vs. Hazara Singh (1965) 7 PLR 643, it was held that the Court should not proceed to hear a suit ex-parte until it is proved to its satisfaction that summons have been duly served strictly in the manner provided in the High Court Rules and orders. It was held that the requirement of personal service has it roots in the fundamental rule of natural justice which demand that the proceedings effecting men's rights should not continue in their absence without reasonable prior notice to them to present the case. It was held that those whose interest may be directly affected by an order are entitled under the law to adequate opportunity to be heard. In the case of Punjab Oil Expellers Co. Vs. Madan Lal Nanda & Sons AIR 1967 Delhi 28, it was held that Rules 1 to 4 of the Delhi High Court Rules, Chapter 7-B (b) of Volume IV contain important directions for the Trial Court which deserves compliance. Since the reports of the Process Server in the present case were not accompanied by an affidavit in accordance with Appendix-1, the Ld. Predecessor of the Court wrongly decided to proceed further with the eviction petition holding that the respondents have been duly served with the summons.
23. In the case of R.K. Sharma & Ors. Vs. Ashok Nagar Welfare Association and Co. AIR 2001 Delhi 272, the Division Bench of the Hon'ble M. No.39/12 (New No.59630/16) Page 10 of 17 11 High Court held that the service of summons was not proper since the Process Server did not bother to make repeated efforts to effect personal service on the defendants, he did not bother to record on the summons that there was no agent available and that he did not bother to state that the persons receiving the summons were adult members of the family. In the present case also, there is no such report of the Process Server. As such, the service upon the respondents is invalid. It was further held in the case of R.K. Sharma that it is highly improbable and against the normal course of human conduct that a person who has been duly served with summons in a suit would not make any effort to defend the suit, specially when he knows that the suit, if decreed would deprive him of his property. In the present case also, it is highly improbable that the respondents would have not contested the case if they were indeed served with summons issued by the Court.
24. In case of Amar Singh Vs. Shanti Devi 1991 (44) DLT 510, it was observed that the report of the Process Server did not indicate that he had visited the residence of the petitioner on more than one occasion. It was noted that on the first visit of the Process Server, he served the summons on the son of the petitioner. It was held that whether the son of the petitioner was an adult member or not was not considered by the Courts below. It was observed M. No.39/12 (New No.59630/16) Page 11 of 17 12 that an irregularity in service of summons which results in passing of an ex-parte eviction decree affecting the tenancy right of a person is a very serious matter. It was held that there is nothing on record to show that the petitioner have knowledge of the eviction proceedings in the Court.
25. Even in the case of Punjab Oil Expellers Co. Vs. M/s Madan Lal Nanda & Sons AIR 1967 Delhi 28, it was held that reasonable efforts are required to be made to have a party served personally. In the present case, no efforts were made by the Process Server to personally serve the summons upon the respondents. As per his report, he did find the respondent numbers 1 and 2 at the premises when he visited it for effecting service upon them. However, no signatures of the said respondents were ever obtained by the Process Server. Statements of the witnesses were also not recorded. The report is also not accompanied by affidavit of the Process Server in the form prescribed in Appendix-1 of Chapter 7 of the Delhi High Court Rules. As such, the report of the Process Server for service of summons upon respondents no.1 and 2 can also not be relied upon.
26. The respondents and AW-5 have stood the test of cross-examination and have consistently affirmed that there is no daughter of the erstwhile tenant by the name of Anju. AW-1 has proved the identity card issued to her M. No.39/12 (New No.59630/16) Page 12 of 17 13 by Election Commission of India as Ex.AW-1/1 as per which, her name is stated to be Manju. No evidence has been lead by the petitioners which establish that she was never known by the name of Anju. Infact, during cross- examination, the petitioners' sole witness i.e. the petitioner no. 1 examined as PW-1, stated that it is from the workers of late Mr. Gopal Dass Arya that he got to know the names of his four daughters. He stated that he is aware of only those names which were told to him by the workers. However, later during cross-examination, the petitioner no. 1 made a contrary averment that he was told about the name of the respondent no. 1 by Mr. Gopal Dass Arya himself. However, no cogent material has been placed on record by the petitioners which establishes that the respondent no. 1 was ever named Anju. There is no reason to disbelieve the testimony of the five witnesses examined by the respondents that the correct name of the respondent no. 1 is Manju and that she was never known as Anju. It is held that the respondents have successfully proved that there is no daughter of the erstwhile tenant by the name of Anju. Since there is no such person known as Anju, the report of the Process Server that he met a person at the property when he visited it for effecting service of summons, who disclosed her name as Anju, is false. It is highly improbable that the person found at the address would disclose an M. No.39/12 (New No.59630/16) Page 13 of 17 14 incorrect name to the Process Server. As such, it is evident that summons were never presented for service upon the respondents.
27. It is categorically stated in the eviction petition that the respondents are married ladies and are not running any business from the tenanted premises. Since the respondents are married ladies and are not using the tenanted premises, it is improbable that two of the respondents were found at the address of the tenanted premises which are shops at the time when the process server visited it. There is no reason for the married ladies to be present at the shops when they are not using it for any business.
28. In view of the admission of the petitioners that the respondents are married ladies and the tenanted premises are shops, it is evident that the petitioners have falsely stated in the memo of parties of the eviction petition that the respondents are "R/o" (residents of) the shops i.e. the tenanted premises.
29. Even the Ld. Predecessor of this Court who decided to proceed further with the eviction petition in the absence of the respondents did not consider the summons sent through the process server as valid service of summons. By this order dated 10.01.2012, it was observed that the summons sent M. No.39/12 (New No.59630/16) Page 14 of 17 15 through the Process Server were refused to be accepted by the respondents. However, it was opined by the Ld. Predecessor that the summons have been served upon the respondent by post. It was held that the registered AD sent to the respondents was returned served.
30. Section 25-B of the Delhi Rent Control Act provides that in addition to issuing of summons for service upon the tenant, the Court shall also direct summons to be served by registered post, acknowledgement due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent reside or work.
31. The initials on the AD cards are not decipherable. The petitioners have not established or even disclosed the name of the person who according to them had signed the AD cards. Since no material has been placed on record which establish that the signatures on the AD cards are that of the respondents or of any agent empowered by them to accept the processes, there is no reason to disbelieve the testimony of the respondents that the signatures on the AD cards are not theirs and that the summons were never served upon them. In the aforementioned case of A.P. Jain Vs. Rajesh Gupta, in similar circumstances, it was held that the service of summons upon the tenant was not properly effected. It was held that strict compliance of the M. No.39/12 (New No.59630/16) Page 15 of 17 16 procedure contained in Section 25-B of the Delhi Rent Control Act has to be met with since in the absence of a valid service, the repercussions are serious since the tenant looses a valuable right on defending his case, which automatically entitles the landlord to a decree.
32. It cannot be presumed that the signatures on the AD cards are of the respondents. Rule 3 of Chapter 7-B (c) of Delhi High Court Rules provide that when summons are served upon the respondent personally, the service and the signature of the respondent on the back of the process should be proved. In the present case, the signatures on the AD cards have not been proved to be that of the respondents. During cross-examination of the respondents, not even a suggestion was made to them that the signatures on the AD cards are theirs. Moreover, the initials are identical on all AD cards which establishes that service, if any, was effected only on one person. It has already been observed hereinabove that service has to be effected upon each of the defendants individually and separately. Since service has not been effected upon all the respondents, it is held that summons were not properly served upon the respondents even by post.
33. The Ld. Counsel for the petitioners has correctly argued that the respondents should have examined the Process Server and the postman to M. No.39/12 (New No.59630/16) Page 16 of 17 17 establish that they were not served with the summons by them. However, this Court is of the view that even otherwise, as has been discussed hereinabove, there are sufficient reasons for holding that summons were not properly served upon the respondents.
34. Since service of summons was not properly affected upon the respondents, the application of the respondents dated 03.09.2012 is allowed. The eviction order dated 23.01.2012 is recalled. The petitioners are directed to restore the vacant possession of the tenanted premises to the respondents within one month from today. The petitioners are further directed to file an amended memo of parties incorporating the correct name of respondent no. 1 as Manju. The eviction petition is restored to its original number. To come up for arguments on application for leave to defend on 15.05.2020.
Digitally
signed by
Shirish
Shirish Aggarwal
Aggarwal Date:
2019.12.04
SHIRISH AGGARWAL
14:32:40
+0530 ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 03.12.2019)
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