Dayal Kishan Phadiyal v. Sukhlal Jain

1. On the first call, the matter was passed over on the request of the petitioner that the counsel is led by a senior counsel and which senior counsel is arguing in another court. It was stated that the matter be passed over as the senior counsel will be free in a short time. The matter was hence passed over, but, even on the second call after one hour of the pass over, 2014:DHC:3848 only one another counsel appears for the petitioner and again prays for a pass over on the ground that the senior counsel is held up yet in another case. For this reason that the case cannot be kept on hold at convenience, counsel for the respondent vehemently opposes any further pass over, and therefore I have directed the counsel appearing for the petitioner to argue the case. Counsel for the petitioner, however states that he cannot argue the case.

2. A reading of the impugned order dated 16.4.2014 shows that the same has dismissed an application under Order 37 Rule 4 Code of Civil Procedure, 1908 (CPC) filed by the petitioner/tenant in a bonafide necessity petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’).

3. The eviction petition for bonafide necessity was decreed ex-parte as per the order dated 18.12.2012 as the petitioner/tenant did not appear inspite of service. As per Section 25B(4) of the Act, in case a leave to defend application is not filed within 15 days of service, the contents of the eviction petition are deemed to be admitted and an eviction petition decree follows.

4. In the application for setting aside the ex-parte decree under Order 37 Rule 4 CPC filed by the petitioner/tenant, it is stated that the petitioner/tenant was not in town on 27.11.2012 when the summons are said to be tendered by the process server because the petitioner/tenant had gone to his village in Uttrakhand to meet his ailing father.

5. I may note that the Supreme Court in the judgment in the case of Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 has held that there cannot be condonation of delay of even one day in filing of a leave to defend application, and therefore most of the discussion in the impugned judgment discussing the aspect of condonation of delay is not relevant in view of the ratio of the judgment of the Supreme Court in the case of Prithipal Singh (supra).

6. The only aspect in this case is whether the petitioner/tenant was served in the eviction petition. In this regard, the trial court has noted the relevant facts in paras 12 and 13 of the impugned order, and which read as under:- “ 12. Perusal of the file would show that eviction order was passed by Ld. Predecessor of this Court on 18.12.2012. As per which, the respondent was deemed to have been served by registered post on 23.11.2012 and despite the expiry of 15 days of the stipulated period, no leave to defend was filed on behalf of the respondent.

13. It is further mentioned in the above said order that notice sent to respondent by ordinary process received back with report of unavailability of respondent. However, notice sent by the registered post was served as the AD card was received to the Court having been received on 23.11.12. Perusal of the report on the process-server on the process shows that there is endorsement on the same regarding non availability of respondent on 27.11.12. However, AD card which was received to the court, the date of receiving is mentioned as 23.11.12. The genuineness of the said AD card has not been disputed. The address of respondent is also not disputed. Presumption under Section 27 of General Clauses Act is also attached in matter of service through registered post.” (underlining added)

7. The aforesaid paras make it clear that the petitioner/tenant was deemed to be served by registered AD post on 23.11.2012 and hence the non-availability from 27.11.2012 is not relevant. The genuineness of the AD card as also the address of service of the present petitioner was not disputed. Therefore, once the petitioner/tenant was served, and the order of eviction was passed on 18.12.2012, the eviction order could not be set aside by an application under Order 37 Rule 4 CPC because there is no entitlement of having delay condoned, even of one day, in view of the ratio of the case of Prithipal Singh (supra).

8. Though at the conclusion of this judgment, a new counsel for the petitioner appeared and she argued that petitioner’s signatures do not appear in the AD card, however, on a query put to this counsel, she states that it is not pleaded in the application for setting aside the ex-parte decree that signatures on the AD card are not of the petitioner/tenant. Therefore, any argument beyond pleading cannot be looked into by this Court.

9. Dismissed.

VALMIKI J. MEHTA, J. AUGUST 12, 2014 KA