Delhi High Court
Vijay Kumar vs Shanti Narain on 19 April, 1995
Equivalent citations: 58(1995)DLT776
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
1. The facts giving rise to the present petition are that the respondent claiming to be owner landlord of the premises in suit, namely, 115, State Bank Colony, Rana Pratap Bagh, Delhi filed an eviction petition against the petitioner herein on or about 8.7.1993 under Clause (e) to the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as an Act). The respondent herein sought eviction of the petitioner tenant from the suit premises on the ground that the premises were required bona fide by him for his own residence and the residence of his family and that he had no other alternative residential accommodation available with him in Delhi. The summons in the prescribed form were ordered to be issued to the tenant for 18.10.1993, 16.11.1993, 25.11.1993,6.12.1993 and 15.2.1994. The tenant was, however, served by way of publication in the daily 'National Herald'. The summons were published on 23.3.1994. While the next date of hearing fixed in the case before the Additional Rent Controller was 11.4.1994. On 11.4.1994, there was no appearance on behalf of the tenant. The Additional Rent Controller noted that the summons had been served on the tenant through publication in the 'National Herald' on 23.3.1994. It was further noticed that no application for leave to defend had been filed. The period of 15 days from the date of publication of notice in the newspaper had expired. Therefore, the Additional Rent Controller proceeded as per the procedure prescribed under Section 25B of the Act and passed an eviction order against the tenant under Section 14(1)(e) of the Act. The tenant moved an application on 21.11.1994 before the Additional Rent Controller under Order 9 Rule 13 CPC for setting aside the eviction order passed on 11.4.1994. Along with the said application, another application under Section 5 of the Limitation Act for condensation of delay was also filed. The respondent landlord filed replies to both the said applications. Vide order dated 23.1.1995, both the applications were dismissed by the Additional Rent Controller. In the said order, the Additional Rent Controller has discussed at length the question of service of summons on the tenant. He has also taken a view that the order dated 11.4.1994 was not an ex-parte order. The same was passed as per the provisions of Section 25B of the Act. According to these provisions, it is for the tenant to apply and obtain leave to contest the eviction petition and if the tenant fails to do so, the averments in the eviction petition are deemed to be correct and an eviction order must follow. Therefore, the Additional Rent Controller was of the view that it was not an ex-parte decree which was passed against the tenant. The applications of the tenant were rejected.
2. The tenant has filed the present revision petitions against both the orders of the Additional Rent Controller. The first revision petition is directed against the order dated 11.4.1994 whereby the eviction order was passed while the other revision petition is directed against the order dated 23.1.1995 rejecting the applications of the tenant for setting aside the ex-parte decree.
3. I have heard the learned Counsel for the parties. So far as the question of service of the summons on the tenant is concerned, it is apparent from the record that thrice attempt was made to serve the tenant. On each of the three occasions, the summons were sent by ordinary process as well as by Registered A/D post, So far as the summons sent by ordinary process are concerned, in the first report the process server is stated to have met the wife of the tenant who refused to accept the summons and it was stated that the tenant was out of station. On the other two occasions, the process server met the servant of the tenant who on each occasion stated that the tenant was out of station and the servant did not receive the summons. This is the position so far as the summons sent through ordinary process are concerned. Regarding the summons sent through Registered Post, the report of the postman on the first envelop is of refusal. On the second envelop the report is that in spite of repeated visits, the addressee was not available and according to the postman, he was avoiding to take the notice. The A/D cover sent for the third occasion did not return back. Regarding this, the learned Counsel for the respondent herein (landlord) submits that in view of the provisions of Order 5 Rule 19ACPC, return of the Registered post envelop is not necessary. The fact that the envelop was sent through registered post is enough to treat it as service. Ultimately, the Additional Rent Controller passed an order on 3.1.1994 on an application of the landlord under Order 5 Rule 20 CPC for service of the tenant through publication in the newspaper 'National Herald'.
4. On the question of service of the tenant, the learned Counsel for the petitioner submits that the order dated 6.12.1993 shows that till that date the Additional Rent Controller did not feel satisfied about due service on the tenant and, therefore, on the said date an order was passed issuing fresh summons to the tenant both by ordinary process as well as registered covers for 15.2.1994. It is submitted that the landlord did not comply with the said order and instead moved the application under Order 5 Rule 20 CPC for substituted service. The argument on behalf of the petitioner tenant is that the Additional Rent Controller should have ensured compliance of his order dated 6.12.1993 and that the order regarding service of the tenant by way of substituted service should not have been passed. I am unable to accept this. When an application under Order 5 Rule 20 CPC is filed, the Court has to consider whether the facts and circumstances of the case justify and order for substituted service through publication in the newspaper or not. This means that the Court has to consider whatever previous attempts that have been made to serve the party sought to be served. An over-all view has to be taken to form an opinion that the person concerned cannot be served in the ordinary manner and then only the Court proceeds to adopt the mode of substituted service. Therefore, I do not find any illegality in the Additional Rent Controller proceeding under Order 5 Rule 20 CPC in order to serve the tenant. The order dated 23.1.1995 shows that the Addl. Rent Controller felt in view of the reports of the process server on the summons sent by ordinary process that the tenant must have had knowledge of the pendency of the eviction petition. The process server on the first occasion met his wife while on the subsequent occasions he met his servant. Moreover, in the application of the tenant under Order 9 Rule 13 CPC, there is nothing to contradict these reports. As per the averments contained in the said application of the tenant, the tenant came to know about the eviction order on 15.11.1994. The applications under Order 9 Rule 13 CPC bear the date 21.11.1994. This means that there was a gap of about six days. During this period the record of the Addl. Rent Controller was inspected on behalf of the tenant. Therefore, the tenant must be aware of the various reports regarding his service. Still, no attempt was made in the application to challenge those reports. Further, the lower Court record shows that a copy of the newspaper in which the notice was published was sent by the newspaper Under Postal Certificate to the Addl. Rent Controller as well as to the tenant. The UPC slip is on record. It contains postal stamp showing that it was dispatched on 23.3.1994. The tenant does not even say in the application under Order 9 Rule 13 CPC that he did not receive the newspaper. The address given in the UPC slip is correct as per the record and, therefore, there can be no reason to presume that the newspaper was not received at the suit premises by the tenant. The application is totally vague on all material aspects. The learned Counsel for the petitioner tenant has argued that the eviction order was passed on 11.4.1994, i.e., on the 19th day from the date of publication of the notice in the newspaper. What is being urged is that the Addl. Rent Controller was in a great hurry to dispose of the matter and even clear 15 days' time as envisaged in the Statute was not allowed to the tenant to apply for leave to contest. Both these reasons are without any substance. Firstly, the date of publication of the notice in the newspaper is 23.3.1994 and time starts running from the said date. 11th April, 1994 was the date already fixed in the case and, therefore, the case had to be taken up by the Addl. Rent Controller on that date. By that time, 15 days had already expired and no application for leave to contest the eviction petition had been filed. It cannot be said that the Addl. Rent Controller was not justified in passing the impugned order.
5. In fact, as per the provisions of Section 25-B(9) of the Act, the tenant could move the Controller for review of the eviction order as per provisions of Order 47 of the 1st Schedule to the Code of Civil Procedure. This Court has also held that the tenant can approach the Controller as per the analogy of Order 37 Rule 4 CPC for setting aside of an eviction order passed in such circumstances. It is important to note that in the present case apart from moving the application under Order 9 Rule 13 CPC to which reference has been made already, the tenant did not move any application either under Section 25-B(9) or under Order 37Rule 4 CPC. I may mention here that in the heading of the application under Order 9 Rule 13 CPC, an addition has been made by hand to mention Order 37 Rule 4 also, but a perusal of the application shows that it does not contain any averments which are necessary in an application under Order 37 Rule 4 CPC or under Section 25-B(9) of the Delhi Rent Control Act. The entire thrust of the tenant's application under Order 9 Rule 13 CPC is on the question of service of summons on the tenant though in para 4, it has been stated that ingredients of Section 14(1)(e) have not been pleaded by the landlord and, therefore, the eviction order should not have been passed. Mere statement that ingredients of Section 14(1)(e) have not been pleaded is not enough for grant of leave to defend. The Addl. Rent Controller has stated in the eviction order dated 11.4.1994 that all the ingredients of Section 14(1)(e) of the Act are contained in the application and a bare perusal thereof shows that necessary ingredients are very much in existence in the petition. For making out a case for grant of leave to contest the tenant has to plead certain facts which if established on trial will disentitle the landlord to an order of eviction. No such plea is contained in the said application. The crux of the matter is thus that there was no application in the nature of an application for leave to contest the eviction petition before the Addl. Rent Controller at any stage. The lower Court record had been summoned by this Court for purpose of deciding these petitions and the record shows that there is no application for leave to contest the eviction petition on the record. In the absence of an application for leave to contest, the situation remains still. Without seeking leave, the tenant cannot avoid ah eviction order. It follows that on account of failure of the tenant to obtain leave to contest the eviction petition, the Addl. Rent Controller was left with no alternative but to pass an eviction order. This is what has happened in the present case. I am unable to find any illegality in the orders passed by the Addl. Rent Controller. The result is that both the petitions fails and are dismissed.