Delhi High Court
Sudarshana Rani vs Kamla Bhutani on 15 November, 1991
Equivalent citations: 45(1991)DLT678
JUDGMENT S.C. Jain, J.
(1) Facts giving rise to this revision petition are that Smt. Sudarhan Rani Kapoor, petitioner, herein, filed an eviction petition against Smt. Kamla Bhutani, respondent herein, under Section 14(1)(e) read with Section 25B, of the Delhi Rent Control Act, as amended, on the ground that the premises are required bonafide by the landlady for her occupation as residence for herself and other members of her family.
(2) Summons under Schedule Iii of the Delhi Rent Control Act were also issued in accordance with Section 25B(3)(a) of the Act, but the same were not personally served on the respondent as she was away to Calcutta. Her attorney who had received the summons, filed an application under Section 25B(4) seeking leave to defend the eviction petition within the statutory period of fifteen days. That application was, however, dismissed by the Addl. Rent Controller vide order dated 18,3.1991 observing that the same should have been filed by the respondent herself. Admitting the averments made in the eviction petition to be correct, the Addl. Rent Controller passed an eviction order under Section 14(1)(e) of the Del hi Rent Control Act in favor of the petitioner and against the respondent on 18.1.1991. However, six months time was granted for vacating the said premises.
(3) The respondent having come to know of the eviction order, filed an application on 1.2.91 under Section 25B(9) of the Delhi Rent Control Act read with Order 9 Rule 13 Civil Procedure Code and Section 151 Civil Procedure Code for recalling the eviction order dated 18.1.91 on the ground that she was never served with the summons issued under Section 25B(3)(a). She was away to Calcutta and she had no personal knowledge of the eviction petition filed against her and as such question of filing an application seeking leave to defend by her personally could not have arisen. It was only on 29.1.91, when the respondent received a caveat under Section 148 Civil Procedure Code then she came to know that eviction order has been passed against her on (8.1.1991. She immediately moved an application supported by an affidavit for recalling the order passed against her and seeking leave to defend the eviction petition.
(4) The Addl. Rent Controller Mr. S.P. Garg after hearing the Counsel for the parties and going through the record, came to the conclusion that the respondent was not served personally, so there was no sufficient reason to proceed against her and to refuse leave to defend the eviction petition. He found sufficient grounds for recalling the eviction order dated 18.1.91 in view of the provisions of Order 37 Rule 4 Civil Procedure Code read with Section 25B(9) of the Delhi Rent Control Act and Section 151 CPC. Thus the eviction order was set aside and the case was re-listed for deciding the application of the respondent filed by her seeking leave to defend.
(5) Aggrieved, the petitioner landlady has filed this revision petition.
(6) Section 25B(4) of the Delhi Rent Control Act, as amended provides that the tenant on whom the summons is duly served (whether in ordinary way or by registered post) in the form specified in Iii Schedule shall not consent the prayer for eviction from the premises unless he or she files an affidavit staling the ground on which he/she seeks to obtain leave from the Controller as hereinafter provided and in default of his appearance in pursuance to the summons and or his obtaining leave, statements made by the landlord in his eviction petition shall be deemed to be admitted by the tenant and the applicant shall be entitled to eviction order on the grounds aforesaid.
(7) In this case the main question which requires determination is whether the tenant was duly served with the summons issued in form specified in Iii Schedule and filed an affidavit seeking leave to defend within the statutory period from the date of service ? There is no dispute about the legal proposition that the delay in filing the application seeking leave to defend cannot be condoned by the Addl. Rent Controller even within the provisions of Section 5 of the Limitation Act. However, the eviction order passed in the absence of the application seeking leave to defend can be challenged on the analogy of Order 37 Rule 4 Civil Procedure Code which provides that after the decree a Court may, under special circumstances, set aside the decree and if necessary stay or set aside the execution and may give leave to defend the suit, if it seems reasonable to the Court so to do and on such terms as the Court may think fit. Section 25B(9) of the Act also gives power of review to the Rent Controller in accordance with the Order 47 of the first schedule to Civil Procedure Code in case no application has been moved to the High Court on revision.
(8) In this case, as in apparent from the record no personal service of summons was effected on the respondent-tenant, she was served through her attorney as she was away to Calcutta and her attorney in her absence filed an application seeking leave to defend within 15 days but the Addl. Rent Controller dismissed that application only on the ground that the attorney had no authority to file the application seeking leave to defend. When he had no authority to file the application seeking leave, he had also no authority to receive the summons u/Sec. 25B on her behalf. It is not on the record that he received the summons as an agent of the tenant, respondent herein. The Addl. Rent Controller has rightly held that the respondent was not personally served and there were no sufficient reasons to proceed against her to refuse leave to defend the eviction petition. I do not find any irregularity or illegality in the impugned order. Ther is even no jurisdictional error. This revision petition is dismissed at the admission stage itself.