Delhi High court upholds the order of the trial court in eviction order passed by the Rent Controller, Central District, Delhi.
‘Case title: Shrawan Sultania vs Avneet Goyal
Case no.: RC.REV. NO. 454 OF 2016
Dated on: 07th May 2024
Quorum: Justice Hon’ble Mr. Justice Girish Kathpalia
FACTS OF THE CASE
The present petitioner filed the present petition seeking to set aside the impugned eviction order dated 23.11.2015 and all subsequent proceedings as well as for restoration of possession. The petitioner assailed the eviction order under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 which was passed as no application for leave to contest was filed. Apparently, by order dated 21.09.2016, the predecessor bench directed the respondent not to alienate the subject premises. It seems that even prior to filing of this revision petition, possession of subject premises was restored to the respondent/landlord in execution. It was noticed that the revision petition appears to be barred by limitation insofar as the impugned order was dated 23.11.2015 but the present revision petition was filed on 07.09.2016. The present respondent claiming himself to be co-owner of premises No. 2619/1, Zera Fazil, Lahori Gate, Naya Bazar, Delhi (hereinafter referred to as “the subject premises”) filed an eviction petition against the present petitioner under Section 14(1)(e) of the Act, pleading therein that the subject premises was purchased by him and two more persons by way of registered sale deed dated 26.05.2010 and at that time, the present petitioner was already occupying the subject premises as a tenant for commercial purposes; that his family consists of his wife, one married son and one married daughter; that his son, who has been assisting him in food grain business for past 4-5 years now wants to start an independent shop/showroom of pulses and for that purpose, he is in bona fide requirement of the subject premises since they do not have available with them any reasonably suitable alternate accommodation.
The present petitioner opted not to file any application for leave to contest, the learned Rent Controller allowed the eviction petition by way of the impugned order dated 23.11.2015. Thereafter on 28.05.2016 after expiry of statutory protection period, the present respondent instituted execution proceedings which culminated into restoration of possession to the present respondent on 11.07.2016. The present petitioner filed before the learned Rent Controller an application under Order IX Rule 13 CPC on 16.08.2016 and the same was dismissed on 17.08.2016.
CONTENTIONS OF THE APPELLANT
Learned counsel for petitioner tenant argued that there was no proper service of summons in the prescribed format, so the impugned order is not sustainable in the eyes of law. It was argued on behalf of petitioner that the report of the postman on the envelope containing the summons was procured by the respondent in collusion, so the same cannot be relied upon. Learned counsel for petitioner took me through documents on record pertaining to the proceedings in civil suit between the parties, which was pending during the relevant period and contended that nothing prevented the respondent landlord from serving the summons before the civil court. The Learned counsel for petitioner submitted that keeping in mind date of his knowledge about the impugned order, the petition is within time but as a matter of abundant precaution, he wants to file an application for condonation of delay in filing the revision petition. Further submitted adjournment to examine the legal position further. Basically, the petitioner/tenant had filed these proceedings under proviso to Section 25B (8) of the Delhi Rent Control Act to assail the eviction order dated 23.11.2015 which was passed under Section 14(1)(e) of the Delhi Rent Control Act since the petitioner/tenant failed to file an application for leave to contest. Subsequent to the eviction order, the petitioner/tenant filed an application under Order IX Rule 13 CPC which was rejected but that rejection has not been challenged till date.
CONTENTIONS OF THE RESPONDENTS
The learned counsel for respondent supported the impugned order and contended that since service of summons in prescribed format was carried out through as many as four modes, there was no error in the view taken by the learned Rent Controller. As regards service of summons through civil court, learned counsel for respondent contended that the same is beyond the scope of specific procedure prescribed in Chapter IIIA of the Act for service of summons. Learned counsel for respondent also took me through record to point out the multiple efforts of the petitioner/tenant to avoid service of summons.
LEGAL PROVISIONS
1. Section 25B (8) of the Delhi Rent Control Act 1958: 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.
2. Section 14(1)(e) of the Delhi Rent Control Act 1958: protection of tenant against eviction
3. Order IX Rule 13 CPC: For an order to set aside the ex-party judgement at any period between the date of judgement and the 30th day from the date of the decree or where the summons was not duly served.
4. Section 25B(3)(a) that the Rent Controller Act: Special procedure for the disposal of application for eviction on the ground of bona fide requirement.
ISSUES
1. whether on the summons in the prescribed format were duly served petitioner/tenant or not?
COURT’S ANALYSIS AND JUDGEMENT
This petition, brought under proviso to Section 25B (8) of the Delhi Rent Control Act, the petitioner/tenant has assailed the eviction order passed under Section 14(1)(e) of the Act by the learned Rent Controller, Central District, Delhi. On service of notice, respondent entered appearance through counsel. I heard learned counsel for both sides. the matter was adjourned at request of learned counsel for petitioner as he required time to examine the legal position qua survival of the present petition in the light of restoration of possession of the subject premises to the present respondent and consequences of failure to challenge the order of dismissal of application under Order IX Rule 13CPC. But subsequently, learned counsel for the present respondent gave up on both these counts in the interest of expeditious disposal of the main petition, treating the said two issues as only academic ones. The pdf page 108 of the digitized record of the trial court is a copy of summons bearing report of the process server that on 30.10.2015, the subject premises were found locked, so the process server pasted a copy of summons outside the premises. The pdf page 110 of the digitized record of the trial court is the copy of The Statesman newspaper in which the summons were published on 02.11.2015. Despite that, the petitioner/tenant did not file the application seeking leave to contest, which led to the impugned eviction order. the summons could not have been served before the learned Additional Senior Civil Judge on 05.10.2015. Of course, earlier on 02.06.2015, the petitioner was personally present before the learned Additional Senior Civil Judge, but on that day there was no reason for the present respondent/landlord to anticipate that the petitioner/tenant would avoid service of summons issued on the petition filed hardly a week back on 27.05.2015. Thus, when summons through ordinary process and registered post could not be served on the petitioner/tenant, service of the same was effected by way of substituted modes of affixation and publication, the learned Rent Controller having been satisfied that the petitioner/tenant was avoiding service of summons. But despite service of summons in the prescribed format, the petitioner/tenant to his peril opted not to file any application seeking leave to contest, and consequently, the eviction order was passed. Court didn’t find any infirmity in the impugned order, so the same is upheld and the petition is dismissed.
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Judgement Reviewed by – HARIRAGHAVA JP
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