Om Prakash v. Som Prakash Gupta

Delhi High Court · 21 Sep 2023 · 2023:DHC:7417

Jasmeet Singh

RC.REV. 499/2018

2023:DHC:7417

property appeal_allowed Significant

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The Delhi High Court set aside an eviction order due to invalid service of summons, emphasizing strict compliance with service provisions under the Delhi Rent Control Act and granting the tenant an opportunity to file leave to defend.

Full Text

RC.REV. 499/2018
HIGH COURT OF DELHI
Date of Decision: 21.09.2023

RC.REV. 499/2018 & CM APPL. 43714/2018
OM PRAKASH ..... Petitioner
Through: Ms. Sonali Malhotra, Adv.

VERSUS

SOM PRAKASH GUPTA ..... Respondent
Through: Mr. Pankaj Kr. Verma, Mr. Sandeep Kumar, Mr. Amit Gautam, Mr. Ankit Chauhan, Advs.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH : JASMEET SINGH, J (ORAL)

JUDGMENT

1. This is a petition seeking setting aside of the eviction order dated 22.02.2018 passed in E-15/2018, wherein a decree for eviction was passed in respect of property bearing No. VI/6442, First Floor, Gali Kumharan Katra Baryan, Delhi-110006.

2. The order of eviction was passed as the petitioner had failed to file his leave to defend within the statutory period.

3. This Court on 06.02.2020 directed as under:-

“1. Petitioner impugns order dated 22.02.2018 whereby eviction petition filed by the respondent on the ground of bonafide necessity under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 has been allowed and an eviction order passed. Eviction order was passed on the ground that despite service, the petitioner did not file any leave to defend

application.

2. Learned Amicus Curiae appearing for the petitioner submits that petitioner was never served with the summons and as such the leave to defend application was not filed. Learned counsel submits that on 08.01.2018, the Rent Controller had directed that summons to been issued, on the eviction petition filed by registered AD as well as ordinary process and directed that at least three attempts would be made for service of the process and thereafter affixation of summons would take place at a conspicuous place.

3. Learned counsel submits that the Rent Controller has noticed the returned envelope which shows that attempt was made to serve the petitioner on 25.01.2018, 29.01.2018 and again on 29.01.2018 and thereafter there is alleged refusal.

4. Learned counsel submits that the envelope clearly shows that there was overwriting on the envelope, a date 26.01.2018 has been changed to 29.01.2018. Learned counsel submits that the envelope clearly indicates that there is a manipulation in terms of attempted service. Further it is contended that the report of the process server also appeared to have been procured as the report makes incorrect averments and the report per se does not amount to sufficient service.

5. Learned counsel for the respondent submits that the respondent has already obtained possession in execution proceedings and respondent is presently occupying the subject premises for own personal use.

6. Since the allegations have been made with the regard to procurement of service report and there appears to be some overwriting on the returned envelope with regard to the date of attempting service, in my view, it would be expedient to direct the concerned Rent Controller to record the statement of the Postman who had attempted service as also the process server with an opportunity to the petitioner to conduct the crossexamination of both; process server as well as postman and thereafter submit a report alongwith the testimony of the process server and the postman.

7. Parties shall appear on 20.02.2020 before the concerned Rent Controller for fixing a date for recording of the statements.

8. List this petition for directions/hearing on 14.05.2020.

9. Rent Controller shall endeavour to conclude the statements and submit a report at least one week before the next date of hearing.

10. Keeping in view the peculiar facts and circumstances that an Amicus Curiae was appointed by this Court, Mr. Jaspreet Singh, Advocate (Mobile No. 9899641617) is appointed as Amicus Curiae for the petitioner to appear before the Rent Controller.

11. In the meantime, respondent shall maintain status quo with regard to the title and possession of the subject premises.”

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4. Pursuant to the aforesaid directions, the evidence of the postman was recorded, which reads as under:-

5. I have heard learned counsels for the parties.

6. Section 25B of the Delhi Rent Control Act, 1958 prescribes special procedure for disposal of eviction petitions on the ground of bona fide requirement.

7. Sub-section 3 and 4 of Section 25B of the Delhi Rent Control Act, 1958 reads as under:- “25B....... (3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. (b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a 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. (4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.”

8. Further, Rule 22 of the Delhi Rent Control Rules, 1959 reads as under:-

“22. Service of notice, etc.—Unless otherwise provided by the

Act, any notice or intimation required or authorised by the Act to

be served on any person shall be served—

(a) by delivering it to the person;

(b) by forwarding it to the person by registered post with acknowledgment due.”

9. Sub-section 3 of Section 25B of the Delhi Rent Control Act, 1958 mandates that the controller may presume there to be a valid service of summons in case of a refusal by the tenant only on an acknowledgement when the summons are received back with an endorsement made by the postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article. The statement of the postman AW-2 Sh. Kailash Kumar categorically states that he did not meet the petitioner or his wife or any of his relatives and does not even know as to who had said the words of refusal “ham nahi le rahe”. In this scenario, to assume that there is deemed service upon the petitioner is incorrect. I do not think that the petitioner has been served as mandated under the provisions of the Delhi Rent Control Act, 1958 and Delhi Rent Control Rules, 1959.

10. The division bench of this Court in Director Directorate of Education & Anr. v. Mohd. Shamim & Ors. 2019:DHC:6510-DB has observed as under:

“24. (…) Section 25B(3)(b) of the Act empowers the Controller to declare that there has been valid service of summons issued under Section 25B(3)(a) of the Act when an acknowledgement “purporting to be signed by the tenant or his agent” is received back by the Controller or when the registered article containing the summons is received back with an endorsement “purporting to have been made by a postal employee” to the effect that the tenant or his agent has refused to take delivery of the registered article. Thereunder the Controller is empowered to declare that there has been a valid service merely when there is an appearance of service or refusal. However Section 25B(4) empowers the Controller to order eviction on failure of the tenant so served to apply for leave to defend only when the summons is “duly served”. A summon purporting to be served or refused cannot be said to be “duly served” if it is shown that what was purporting to be signed by the tenant was indeed not signed by the tenant and / or what was purporting to be refusal of the tenant was indeed not refusal of the tenant. An order of

eviction passed on purported service if allowed to stand notwithstanding being shown to be not duly served would be in violation of Section 37(1) prohibiting the Controller from passing any order without giving reasonable opportunity to show cause thereagainst and would also be in violation of the practice and procedure of a Court of Small Causes…” (emphasis supplied)

11. Hence, the eviction order dated 22.02.2018 is set aside with the direction that the petitioner shall file his leave to defend within 15 days from the date of signing of this order. The respondent shall be at liberty to file a response to the leave to defend within 15 days thereafter.

12. The learned Rent Controller shall hear arguments on the leave to defend in accordance with law.

13. Nothing stated in the order today would be construed as an opinion on merits and the learned Rent Controller will hear and pass orders in accordance with law, uninfluenced by the observations made in this order.

14. Mr. Verma, learned counsel for the respondent has handed over a copy of a letter dated 24.04.2023, wherein the premises in question have been found to be in very dangerous / dilapidated condition by the SHO, PS Lahori Gate, Delhi. In this view of the matter, I am refraining from passing an order restoring possession to the petitioner. The petitioner is at liberty to move an appropriate application before the learned Rent Controller who shall pass appropriate orders, if any, in this regard. The letter dated 24.04.2023 handed over in Court today is taken on record.

15. The documents handed over in Court today by the learned amicus curiae are also taken on record.

16. Mr. Jaspreet Singh, appointed as amicus curiae earlier, is requested to assist the petitioner in the proceedings before the learned Rent Controller.

17. The order be immediately communicated to Mr. Jaspreet Singh, Advocate bearing office address Chamber No. B-149, Tis Hazari Court, Delhi (Mobile No. 9899641617).

18. In view of the aforesaid terms, the present revision petition is allowed.

Om Prakash v. Som Prakash Gupta

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