Delhi District Court
Sh.Suresh Chand Gupta vs Sh.Pradeep Kumar Jain on 24 November, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
E. No.44/11.
Sh.Suresh Chand Gupta ................Petitioner
Vs.
Sh.Pradeep Kumar Jain ............Respondent
ORDER
24.11.2011.
01. By way of present order I shall decide the issue as raised on behalf of petitioner to the effect, "Whether the application for leave to defend and contest as filed on behalf of respondent u/s 25 (3)(5) of the DRC Act 1958 is within stipulated period or not ?"
02. In brief, facts necessary for disposal of aforesaid issue is that petitioner filed the present petition u/s 14(1)(e) r/w section 25 B of the DRC Act 1958 for eviction of respondent from tenanted premises on the ground of bonafide requirement by the petitioner to settle his younger son. Summons in the form specified in the IIIrd Schedule were directed to be issued for service of the tenant on filing process fee, registered post, AD due for 27.09.2011. The petitioner gave two addresses of the respondent in the memo of parties, one of the tenanted premises and another the residential address of the respondent. Summons as per Schedule III of DRC Act issued through registered post to respondent at his residential address received back with the endorsement of Postman as "refusal" dt.28.07.2011, while the summons issued through registered post to the respondent at the address of E. No.44/11 page 1 of page 4 tenanted premises received back with the remarks "shop is lying closed for quite some time". Summons as per Schedule III of DRC Act issued to respondent through ordinary process at the address of tenanted premises also received back with the report "shop is lying closed for last so many years" while summons as per Schedule III issued to respondent at his residential address received back duly served on 27.08.2011. The respondent filed application for leave to contest on 06.09.2011 i.e.within 15 days from the day when summons as per Schedule III DRC Act were served upon the respondent through ordinary process at his residential address.
03. The main contention of ld.counsel for petitioner is that respondent is deemed to be served on 28.07.2011, when he refused the process issued through registered post at his residential address and therefore, the application as filed on 06.09.2011 is not within the stipulated period and as such, application for leave to contest is liable to be dismissed and eviction order should have been passed against the respondent. On the other hand, ld.counsel for respondent argued that there is no endorsement on the registered envelop as to who refused to accept the summons sent through registered post and the report on the registered envelop at the residential address of the respondent is not genuine. Ld.counsel for respondent further argued that as per sub section 3(a)(b) when a registered article containing summons received back with an endorsement perporting to have been made by an postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the controller may declare that there has been a valid service of summons. Ld.counsel for respondent also drawn my attention in respect of authorities reported as 1984 RCJ Vol.I, 1980 RLR 622 to 626, 1979 RCJ Vol.II.
E. No.44/11 page 2 of page 4
04. In an authority reported as The Frank Anthony Public School Vs. Smt.Amar Kaur, reported as RCR 1984 Vol.I, it was held by Hon'ble Delhi High Court and I quote :-
"If the service is effected on the tenant under summary procedure both ways i.e.Regd. A/D and by ordinary process then fifteen days time for leave to contest has to be reckoned from the date of second service and not from the date of first service."
05. In another authority reported as Surender Kumar Vs. Prem Kumar, reported as 1980 RLR 621, it was held by Hon'ble Delhi High Court and I quote:-
"(a) Delhi Rent Control Act, S.25B. If law prescribes two different modes of service of summons and service is effected by both the modes but on different dates, then limitation for application for leave to defend would run from the later date."
06. Adverting back the facts of present case, the remarks of the postal employee on registered envelop as refusal dt.28.07.2011 does not say that the addressee or his agent has refused to accept the registered envelop. The summons as per Schedule III of DRC Act as sent to respondent on the same residential address was duly received by the respondent on 27.08.2011. I find force in the contention of ld. Counsel for respondent that if the respondent had to refuse the summons, then, same should also have been the result of summons sent through ordinary process. In absence of any remarks of the postal employee whether addressee or his employee refused to accept the registered envelop, I am of the considered opinion that summons were not properly served through registered post. Furthermore, even if it is presumed that respondent was served through registered post, even then, in view of above authorities, the limitation for filing application for E. No.44/11 page 3 of page 4 leave to contest it to be the date of later report, which in the present case is 27.08.2011 and the application for leave to contest is filed within stipulated period of 15 days, when summons as per Schedule III of DRC Act were received by respondent through ordinary process. Accordingly, the issue is answered that the application for leave to contest as filed by respondent is within stipulated period. Now to come up for arguments on application for leave to contest, on 19.01.2012.
Announced in open court ( S.K.MALHOTRA ) on 24.11.2011. SCJ/RC/(North)/DELHI E. No.44/11 page 4 of page 4