Awadh Behari Rohtagi, J.:— The petitioner Smt. Karma Wali is the landlady. The respondent Shri Rajinder Singh is her tenant in the ground floor of house No. F-20, Rajouri Garden at a rent of Rs. 140/- per month.
2. On October 7, 1976 the landlady brought a petition for the eviction of the tenant on the ground of personal bonafide necessity specified in clause (e) of proviso to sub-section (1) of S. 14 of the Delhi Rent Control Act, 1958 (The Act). The Additional Controller tried the petition under the newly introduced procedure of S. 25 (B), of the Act. Summons were issued to the tenant. He did not appear. He made no application for leave to defend the case. The Additional Controller, deeming the allegations in the eviction petition to have been admitted to be correct, passed the eviction order against the tenant on February 21, 1977. On April 12, 1977 the tenant received a notice dated March 31, 1977 from the landlady. From this he came to know that an ex-parte eviction order had been passed against him on February 21, 1977. On April 14, 1977 he made an application to the Additional Controller under O. 9 R. 13 of the Code of Civil Procedure for setting aside the ex-parte decree. The landlady opposed. The Additional Controller dismissed the application on July 16, 1977 holding, interalia, that the tenant had been sufficiently served by publication in the newspaper and that there was no ground for setting aside the eviction order.
3. The tenant was perplexed. He did not know what to do. By way of abundant caution he took nearly all the courses open to him in law. He pursued as many as three remedies.
Firstly, on August 24, 1977 the tenant filed a revision petition in this Court. under S. 25(8) of the Act against the eviction order dated February 21, 1977. Secondly, on that very date he filed another revision petition against the order of the Additional Controller dated July, 16, 1977 dismissing the application under O. 9 R. 13 C.P.C Thirdly, on October 13, 1977 he filed an appeal in the Rent Control Tribunal under S. 38 of the Act against the Additional Controller's order dated July 16, 1977.
4. The two revision petitions were heard by D.K Kapur, J. He dismissed both of them on 13th December 1977. As regards the revision against the Additional Controller's order refusing to set aside the eviction order he held that since an appeal was pending before the Rent Control Tribunal”. “This matter can be agitated there”. On the revision against the eviction order he took much the same view. He said:
“In any case as there is still an appeal pending before the Rent Control Tribunal concerned (against) the application under O. 9. R. 13, all the points on merits can still be agitated before that authority and therefore this revision does not seem to be right remedy”.
dismissed, as I have said.
5. Now came the appeal for hearing before the Rent Control Tribunal. The Tribunal allowed the appeal on May 10, 1978. It took the view that the Additional Controller ought to have afforded an opportunity to the tenant to prove that he was never served in the case and that he should not have dismissed the petition summarily. The Tribunal therefore remanded the case to the Additional Controller for deciding it in accordance with law after affording an opportunity for leading evidence to both the parties. It is this order which is now the subject of complaint in this second appeal.
6. Counsel for the landlady's principal submission is that the order of the Tribunal is without jurisdiction as no appeal is provided under sub section (8) of Section 25 B and the only remedy was a revision which was availed of but without success. It is true that no appeal lies to the Tribunal under section 38 (Sec. S. 25 B (8) of the Act). I have so held in R.K Parikh…Petitioner v. Smt. Uma Verma… 577 of 1977) decided on August 2, 1978.
7. One main question arises on this submission. And that is about the justice of the plea. Counsel for the landlady at the time of hearing of the revisions by Kapur J. that the position that “the order dismissing the application under O. 9. R. 13 of the Code of Civil Procedure is appealable under O. 43 R. 1 (d) of the Code of Civil Procedure and therefore the present petition is not maintainable”. I am quoting the words of the landlady from her reply to the stay application dated September 17, 1977. From the order of Kapur J., also it is clear that that was the chief submission and that it prevailed. Now when the tenant goes to the Tribunal and his appeal is allowed the landlady turns round and says that the Tribunal had no jurisdiction. See the inequity of the submission. When the tenant goes to the High Court in revision his revisions are dismissed on the ground that his appeal is pending before the Tribunal. When he goes to the Tribunal and succeeds in the appeal it is argued against him that the Tribunal had no jurisdiction to hear and decide the tenant's appeal. It is well settled that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and that this wholesome doctrine applies to the successive stages of the same suit.
8. This principle is stated by Bigelow in these words:—
“If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of justice would in most cases be paralysed, the coercive process of the law avilable only between those who consented to exercise, could be set at nought by all. But the rights of all men, honest and dishonest, are in the keeping of the Courts and consistency of proceedings is therefore required of all those who come or are brought before them. It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose.”
9. See Hemanta Kumari Devi v. Prasanna Kumar. A.I.R 1930 Cal. 32, tndermill v. Sub Judge Secunderabad A.I.R 1958 A. P. 779 (781), Amrit Lal N. Shah v. Alla Annapurnamma, A.I.R 1959 A.P 14 and Kartar Singh v. Nanda, A.I.R 1926 All. 664.) If inconsistent positions were to be permitted litigation would have no end except when legal ingenuity is exhausted. In my opinion the action of the landlady herself has precluded her from raising the objection to jurisdiction of the Tribunal (Sara Bibi v. Chandra pal Singh A.I.R 1928 Oudh 503).
10. At this stage it is necessary to state in brief outline the tenant's case. His case is that the order of eviction dated February 21, 1977 is an ex-parte order and can be set aside or reviewed if it is shown that he was never served in the case. That this is a principle of natural justice that no man is to be condemned unheard is undeniable. No authority is needed for this proposition It is a self-evident one. True it is that S. 25 B introduces an abbreviated procedure. It even takes away the elementary right of being heard full length in the conventional style hitherto followed. As the Supreme Court has said:—
“The tenant is even deprived of the elementary right of a defendants to defend a proceeding brought against him, save on obtaining leave of the Rent Controller. If the leave is refused, by Section 25B (4) the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord is entitled to an order for eviction. No appeal or second appeal lies against that order. Section 25B (8) denies that right and provides instead for a revision to the High Court whose jurisdiction is limited to finding out whether the order complained of is according to law.”
(Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750 : A.I.R 1977 SC 265 (274) per Chandrachud, J.).
11. But the legislature is careful to provide that the tenant must be served before an eviction order is passed on the basis of the deeming provision contained in sub-section (4) of S. 25B. Sub-section (2) of S. 25B provides that the “Controller shall issue summons…”. sub section (3) (a) says:—
“The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct summons for service on the tenant, also direct summons to be served by registered post, acknowledgement due………”.
12. The legislature has therefore laid down in S. 25B (3) that the Controller “shall also direct the summons to be served by registered post acknowledgement due” “In addition to, and simultaneously with” the summons for service on the tenant in the ordinary manner. He may “also direct the Publication of the summons in the newspaper circulating in the locality” “if the circumstances of the case so require”.
13. Service by registered post is “in addition to and simultaneously with” the ordinary manner of service. The two go together. They are identical in time. “In addition to and simultaneously with” are expressive words. So are the words also and “shall” in S. 25(B) (3) (a). They embrace the idea of joining or uniting one thing to another, so as thereby to form one aggregate. The tenant must be “duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule”, to use the words sub-section (4) of S. 25B, before an order of eviction can be passed. These provisions regarding service have to be follwed with meticulous care. The Controller must observe them scruplously for they are the only safety valve in a “chain of stiff provisions”. Indeed the “door to defence” has been “narrowed down”. (See Busching Schmitz Pvt. Ltd. v. P.T Menghani, (1977) 2 SOC 835). But a watchful legislature has not dispensed with service, a basic requirement of fair play and fair trial.
14. Now what has happened in the instant case is this. The Additional Controller ordered summons to be issued “both ways—in the ordinary way and by registered post on as many as four occasions i.e October 12, 1976, November 1, 1976. November 29, 1976 and January 1, 1977. Each time summons were issued in the ordinary way. But never by registered post. The landlady did not file the registered A.D cover. So the court could not issue summons by registered post. No registered A.D cover is available on the record. On the ordinary summons the report was one of refusal but the Controller very properly did not accept it as sufficient service and he said so in the order dated July 16, 1977. Without issuing summons by registered post as is obligatory upon the Controller and indicated by the crucial words viz. “shall in addition to and simultaneously with”, the Additional Controller on January 10, 1977 at the “oral” request of the landlady's counsel ordered publication of the summons in Jagat Weekly. The publication was done. The Additional Controller accepted this as sufficient service. Finding that no application for leave had been made within the time prescribed and that the “respondent is absent” as was noted in the proceedings of February 21, 1977, he passed an eviction order.
15. Counsel for the landlady contended that the eviction order passed in this case was not an ex-parte order. He referred me to P.N Films Ltd. v. Overseas Films Corporation Ltd., AIR 1958 Bom. 16. It cannot accept this argument. On a plain reading of S. 25B it cannot be said that the order passed against the absent tenant is anything other than an ex-parte order. sub-section (4) of section 25b reads:—
“………… 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.”
16. A failure to appear “in pursuance of the summons” is one thing. But where the tenant is not served with summons how he is expected to appear and defend it is difficult to understand. When he does not know about the case at all for he never received the summons and does not appear what shall we call it if not ex-parte? It is not of great significance that the application to have the eviction order set aside ought to be an application for review to the Controller under S. 25B (9) of the Act and not under O. 9 R. 13 C.P.C What is of capital importance is this; whether there has been a valid service of summons”, to use the language of the Act? (S.25B)(3)(b).
17. The question now is; Is it open to the Controller to bid adieu to service by registered post and resort straight to publication if service in the ordinary way has not been possible? My answer is No. On a proper construction of the section it appears to me that the legislature is insistent on service by registered post. The word “shall” is a clear pointer. So important is this method of service in the sight of the legislature that S. 25B(3) (b) provides that where A. D. receipt purported to be signed by the tenant is received by the Controller of the registered article is received backwith the postal endorsement that the tenant has refused to take delivery of the registered article, the Controller may declare that there has been “a valid service of summons”. Has there been “a valid service of summons”? This is now for the Additional Controller to decide. This question looms large on the horizon. The Rent Control Tribunal has ordered it to determine it after affording the parties an opportunity of evidence.
18. What is wrong with this order? It is said that it is without jurisdiction. Firstly, the question of jurisdiction was never raised before the Tribunal. No such objection was taken. Secondly, the justice of the case does not require that I should set aside that order. Substantial justice has been done. A court of Tevision is not bound to interfere. Ramath Kelu Kurup v. Subramania-Ayyar, A. I. R. 1937 Mad. 654, and Bira v. Chaitan, A.I.R 1973 Orissa 132 (104). I am not saying that the Tribunal has jurisdiction and that an appeal lies to it under 0.43 R. 1 of the Code of Civil Procedure. On that question I have expressed my opinion in R.K Parikh's case (supra). But even if the order of the Tribunal is illegal juctice does not require that the landlady, in the circumstances of this case, should now be heard to say that the Tribunal had no jurisdiction. She herself is responsible for the situation—a situation of some complexity, complicated as it have been by various proceedings. Firstly she did not file the registered cover inspite of repeated orders of the court. Secondly, she contended that the revision was not maintainable because an appeal lay. And thirdly she raised no objection to jurisdiction before the Tribunal as is apparent from the order itself. Suppose I am wrong in my view and counsel for landlady is right in his submission, that there is no estoppel against statute and that jurisdiction cannot be created by estoppel. Even then the present appeal has to be dismissed on the short ground that it is not maintainable by reason of sub-section (8) of S. 25B. Sub-section (8) reads:—
“No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Con troller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.”
19. A second appeal is expressly barred. Counsel said that I should treat this appeal as revision. I cannot do so. The proviso which gives the power of revision to the High Court postulates that the power is to be exercised in relation to an “order made by the Controller”. It is the order of the Controller which can been examined by this Court to see that it is “according to law”. If I convert the appeal into revision even then there will be the order of the Tribunal staring us in the face. And it is the Tribunal's order of which the landlady complains. She is not aggrieved by the order of the Controller. That order is in her favour.
20. For these reasons I would hold that the appeal is incompetent and I dismiss it as such. The Additional Controller will now decide the application of the tenant after giving the parties an opportunity to adduce evidence. The parties are, however, left to bear their own costs.
21. P.N.C
22. Appeal dismissed.