Citation Codes

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Case Number

C.R No. 134 of 1978

Attorney(S)

S.P.Manga
H.L.Kapoor

Judges

Harish Chandra, J.

Acts

clause (e) of Section 14(1) of the Delhi Rent Control Act, 1958.
Delhi Rent Control Act, 1958 provides that:Rule 22. Service
me.11. Rule 22 of the Delhi Rent Control Rules, 1959
SECTION 106 TRANSFER OF PROPERTY ACT
5, Rule 15 of the Code of Civil Procedure
provisions in the Rent Act and Rule 22
Sub-sections (3)(a) and (b) of Section 25B,
provisions of order 5, Rule 115 CPC.9.
Sub-sections (3)(a) & (b) of Section 25B,
SECTION 27 GENERAL CLAUSES ACT
provisions of Order 5 Rule 15
Sub-section (3)(b),

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Smart Summary

Structured Summary of the Opinion (Harish Chandra, J.)

Factual and Procedural Background

Shri Brij Nath Sharma (the respondent in the present proceedings) filed an eviction petition against the petitioner under clause (e) of Section 14(1) of the Delhi Rent Control Act, 1958. The petitioner permanently resided at the disputed premises in Shahdara, Delhi, but had been posted for work at Agra; accordingly, the respondent supplied two addresses for service in the eviction petition (the Shahdara address and the Agra address).

On 20 May 1977 the Additional Rent Controller ordered issue of summons (turnable on 12 July 1977). Summons were issued on 23 May 1977. The record shows that summons were served by the process server at the Delhi address (and delivered to the petitioner's son, Raj Kumar, on 31 May 1977) and that a registered cover addressed to the petitioner at Agra was returned undelivered on 1 June 1977 with endorsements indicating the addressee was not at home/“left without address.” The Controller did not effect service at Agra through a process server nor send a registered cover to the Delhi address.

When the eviction application was taken up on 12 July 1977 the petitioner filed (on that day) an application for leave to contest (supported by affidavit) and a separate application for condonation of delay, asserting he only learned of the eviction/that summons had been received by his son when he visited Delhi on 10 July 1977. The respondent denied any dishonest service and produced documents indicating the petitioner had been in Delhi between 19 May and 3 June 1977.

The Additional Rent Controller decided the disputed question of service against the petitioner, held that the petitioner had been duly served on 31 May 1977 (relying on Order 5 Rule 15 CPC), refused to entertain the application for leave to contest, and proceeded to order the petitioner's eviction. The composite order dated 19 October 1977 was impugned before the court in this opinion.

Legal Issues Presented

Whether the summons were validly served on the tenant (petitioner) in compliance with the specific statutory procedure set out in Section 25B(3)(a) and (b) of the Delhi Rent Control Act, 1958 when two addresses were given by the landlord.
Whether service of summons effected by leaving the summons with the petitioner's son at the suit premises amounted to valid service on the petitioner, particularly in light of Order 5 Rule 15 of the Code of Civil Procedure (CPC).
Whether Order 5 Rule 15 CPC (or the general service provisions) can be pressed into service in derogation of the specific mandatory procedure of Section 25B(3)(a) and (b) of the Rent Act.
Whether the presumption of service under Section 27, General Clauses Act, or the authorities relied upon (Jagat Bam Khullar v. Battu Mal; Avinash Chander v. Rana Davi) applied to validate service in the present facts.

Arguments of the Parties

Petitioner's (tenant's) Arguments

The petitioner asserted that he only learned of the eviction petition on 10 July 1977 when he visited Delhi and was informed that the summons had been received by his son on 31 May 1977.
In the application for condonation of delay the petitioner alleged that the respondent had "dishonestly" caused service to be effected on the petitioner's son (described as a "simpleton") who did not understand the consequences and neither forwarded the summons to the petitioner at Agra nor notified him.
The petitioner contended that the premises in dispute was his permanent residence and implied that personal service on him should have been effected in accordance with the statutory procedure; he challenged the effectiveness of the service as carried out.

Respondent's (landlord's) Arguments

The respondent denied any dishonest intention in the method of service, stressing that both the Shahdara (Delhi) and Agra addresses of the petitioner were given in the petition and service steps were taken at those addresses.
The respondent produced material (documents) showing the petitioner had remained in Delhi from 19 May 1977 to 3 June 1977, thereby contesting the petitioner's claim that he was unaware of the proceedings until 10 July 1977.
The Additional Rent Controller (for the respondent) relied on Order 5 Rule 15 CPC to sustain service effected through the petitioner's adult son at the residence as valid service on the petitioner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagat Bam Khullar v. Battu Mal, A.I.R. 1976 Delhi 1111	Invoked to seek application of the presumption of service under Section 27, General Clauses Act.	The court held that the pre-conditions necessary to raise the presumption of service in that case did not exist in the present facts; therefore the judgment has no application here.
Avinash Chander v. Rana Davi, 1979 Rajdhani Law Reporter 98	Authority where a tenant was held to have evaded service by registered post and service by postal certificate and by pasting/affixing notice at the premises was considered sufficient (in context of Section 106, Transfer of Property Act).	The court found the facts and conclusions of that judgment inapplicable to the present case and therefore did not rely on it; it declined to discuss it in detail for that reason.

Court's Reasoning and Analysis

The court undertook a statutory and factual analysis focused on the mandatory procedure for service in proceedings under the Rent Act. Key points of the court's reasoning:

Applicable procedure: The court explained that Rule 22 of the Delhi Rent Control Rules, 1959 governs service unless the Act otherwise provides, but Section 25B(3)(a) and (b) of the Delhi Rent Control Act contains specific mandatory provisions for service in proceedings under Section 25B and therefore supersedes Rule 22 for such proceedings.
Content of Section 25B(3): The Controller is obliged to (1) issue summons for service by the ordinary process and (2) simultaneously direct service by registered post, acknowledgment due, at the place where the tenant actually and voluntarily resides or carries on business or personally works for gain. Sub-section (3)(b) allows the Controller to declare valid service only when either an acknowledgment purporting to be signed by the tenant (or his agent) is received or the registered article is returned with an endorsement that the tenant or agent refused delivery.
Effect of two addresses: Because the respondent himself supplied two addresses for service (Shahdara and Agra), the Controller was duty-bound to order both processes (ordinary service and registered post A/D) at each of the two addresses. The record demonstrated that this was not done: although summons were issued for the Delhi address, no registered post A/D was sent to the Delhi address; and although a registered cover was sent to the Agra address it was not supplemented by ordinary process service at Agra.
Illegality of substituted service on the son: The summons given to the petitioner's son at the Delhi premises did not constitute lawful service on the petitioner. The court found that delivering summons to the son was not a legal substitute for personal service on the petitioner under the mandatory scheme of Section 25B.
Inapplicability of Order 5 Rule 15 CPC: The Additional Rent Controller relied upon Order 5 Rule 15 CPC (which permits service on an adult member of the family residing with the defendant) to treat service on the son as effective. The court held that no other provision of law in derogation of the specific requirement of Section 25B(3) may be relied upon to validate service; Sub-section 3(b) prescribes the two exclusive events when the Controller may declare service valid. Even if Order 5 Rule 15 could be read as supplemental, the factual precondition necessary for resort to that provision ("no likelihood of his being found at the residence within a reasonable time") had not been established on the record.
Policy and protective considerations: The court emphasized that, except in circumstances expressly provided by statute, service of summons must be personal—particularly in Section 25B proceedings where failure to appear within a short statutory period causes a loss of a valuable right of defence. The Controller must therefore scrutinize claims of service meticulously to prevent landlords from cutting short due process.
Treatment of precedents: The court reviewed the authorities relied upon and concluded they were inapposite: the presumption in Jagat Bam Khullar could not be invoked because its preconditions were absent; Avinash Chander concerned different facts (evaded registered service and Section 106 of the Transfer of Property Act) and was not applicable.
Conclusion of error below: Because the Controller had not complied with the mandatory statutory service regime and had wrongly treated service on the son as effective, the court concluded that the Additional Rent Controller had failed to apply the mandatory requirements of law and had reached a conclusion not permissible on the facts or in law.

Holding and Implications

Holding (core ruling): The impugned order dated 19th October 1977 is set aside.

The court directed that the Additional Rent Controller proceed with the matter from the stage where the petitioner had filed the application for leave to contest and the respondent had to file a reply thereto. The petition was allowed with costs; counsel's fee was fixed at Rs. 300/-. The order below (which had refused leave to contest and ordered eviction) was therefore vacated.

Immediate consequences for the parties:

The eviction order made by the Additional Rent Controller on 19 October 1977 has been quashed.
The Additional Rent Controller must continue the proceedings afresh from the stage at which the petitioner had applied for leave to contest, allowing the respondent to file a reply to that application.
The petitioner is awarded costs (counsel's fee Rs. 300/-).

Broader legal implication expressed by the court (as stated in the opinion):

The opinion construes Section 25B(3)(a) and (b) as prescribing a mandatory, exclusive procedure for service in Section 25B proceedings and holds that other provisions (such as Order 5 Rule 15 CPC) cannot be used to circumvent that statutory scheme.
The court emphasized the necessity for personal service in the absence of statutory exceptions and the duty of the Controller to probe service claims carefully in eviction proceedings where statutory timelines operate to deprive a tenant of the right to contest.

The opinion does not assert that it is laying down a novel Court-created precedent beyond its application and interpretation of the Rent Act's mandatory service provisions to the facts before it; its direction is corrective of the procedural errors identified in the order under challenge.

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Om Prakash v. Brij Nath Sharma .

Harish Chandra, J.:— Shri Brij Nath Sharma, respondent, filed a petition for the eviction of the petitioner on the ground contained in clause (e) of Section 14(1) of the Delhi Rent Control Act, 1958. The petitioner, though permanently residing in the premises in dispute at Shahdara Delhi had been posted for work at Agra and, therefore, the respondent gave two addresses of the petitioner in the eviction petition itself, i.e, the address at Delhi as well as the address at Agra.

2. On 20th May, 1977 the learned Additional Rent Controller ordered issue of summons under Schedule III of the Act, turnable on 12th July, 1977. The summons were issued on 23rd May 1977. From the record it appears that whereas summons were taken through the process server at Delhi, the same were sent by registered post at Agra. The summons were not sent through the process-server at Agra and through registered post at Delhi.

3. On 31st May, 1977 when the process server called at the residence of the petitioner, the petitioner was not present and the summons were delivered to his son, Raj Kumar. As regards the registered cover sent to Agra, it came back undelivered with an endorsement dated 1st June, 1977 to the effect that the addressee was not at home and it could not be known when he would return. The Check Overseer of the Belanganj Post Office at Agra has verified the above report as correct and has added, by way of English translation of the said report “left without address”.

4. The eviction application was taken up on 12th July, 1977. On that day the petitioner filed an application for leave to contest supported by an affidavit. In the application the petitioner claimed to have come to know about the eviction petition only on 10th July, 1977 when he was visiting Delhi and was informed, for the first time, about the summons in the case having been received by the son on 31st May, 1977. The petitioner also filed a separate application for condonation of delay in which also he set up the case that he was informed about the summons only on 10th July, 1977. In this application it was pleaded that the respondent “dishonestly got service of summons served on a son of the respondent (petitioner) residing in the premises in dispute, although he knew that the respondent (petitioner) is not available at Shahdara, Delhi…………………”. It was further served in para 3 that, “The respondent's son is a simpleton. He did not know the consequences of being served with the summons in the name of the respondent, nor did he care to send the summons to the respondent at Agra or even to write to the been respondent at Agra that some summons have been received by him for and on behalf of the respondent.”

5. In para 4, the petitioner contended that:

“That the respondent happened to come to Shahdara on 10th July, 1977. On his arrival he was confronted with the summons of the petition for his eviction………………….”

6. In reply to the aforesaid averments relating to service of summons, the respondent landlord denied any dishonest intention by averring that both addresses, at Shadhara as well as at Agra had been given for service. It was further averred that in fact the petitioner remained in Delhi from 19th May, 1977 to 3rd June, 1977 and documents were produced showing his presence in Delhi on 3rd June, 1977.

7. In this background of facts and averments, the learned Additional Rent Controller proceeded to decide the disputed question of service of summons on the petitioner.

8. After noting the case of the parties, the learned Additional Rent Controller noted in para 3 of the impugned order that:

“It has to be seen that the petitioner has given both the addresses of the respondent in the title of the petition itself and summons were served at both the addresses. Registered cover containing the summons and addressed to respondent at Agra were received back with the report dated 31.5.1977 to the effect that the respondent was out of station. On the same day summons sent to respondent at address of suit premises were served on him through his son. It is not the case of the respondent that he had any agent to accept services on his behalf. He was not found at the address of Agra. As per his own allegations contained in the application under consideration the premises in dispute is his permanent residence. It is not his case that the son who received this summon is not adult. In these circumstances I find that service of summons on 31.5.77 is due service in view of the provisions of order 5, Rule 115 CPC.”

9. The learned Additional Rent Controller also noted that the petitioner was present in Delhi on 3rd June, 1977 and from this concluded that his averment of having come to know of this summons only on 10th July, 1977 when he was in Delhi was not believed.

10. In the result, the petitioner having been so held to have been served on 31st May, 1977 the application for leave to contest was not entertained and thereupon, on the same day the learned Additional Rent Controller proceeded to order eviction of the petitioner. It is this composite order of 19th October 1977 which is impugned before me.

11. Rule 22 of the Delhi Rent Control Rules, 1959 framed under the Page: 316 the Delhi Rent Control Act, 1958 provides that:

Rule 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 to the person; or

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

12. This Rule would apply only if procedure of service has not otherwise been provided in the Act. As this procedure has been provided in sub-sections (3)(a) & (b) of section 25b, it is this which would apply to proceedings under Section 25B. The two Sub-sections are reproduced below:

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.

25B(3)(b) When an acknowledgment 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 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 their has been a valid service of summons.”

13. Even a plain reading of the aforesaid provisions makes it clear that the Controller is duty bound to (1) issue summons for service by the ordinary process and (2) simultaneously by registered post A/D, at the place where the tenant actually and voluntarily resides or carries on business or personally works for gain.

14. With the respondent-landlord himself showing two addresses of the petitioner in the petition, the Controller was duty-bound to order the above two processes at each of the two addresses. The record shows this was not done. Summons were issued at the Delhi address but no attempt was made to also serve the summons through registered post A/D at this address and summons were not issued through the ordinary process for service at Agra though an attempt for such service was made at Agra through registered post, A/D.

15. The summons issued for service at Delhi were not served on the petitioner, which is the requirement of law. Instead the same were given to the son of the petitioner, which is not a legal substitute for the former and cannot be regarded as service on the petitioner.

16. ‘The entire procedure followed in this respect was against the mandatory requirements of law and surprisingly the Additional Rent Controller failed to apply her mind to this elementary, clear and purposeful mandate of law and glossing over the same, went on to hold that the tenant-petitioner was duly served, a conclusion which cannot be arrived at all in law or on facts. The learned Additional Rent Controller pressed in aid order 5, Rule 15 of the Code of Civil Procedure for clutching upon the provision therein, that “……………………service may be made on any adult, member of the family, whether male or female, who is residing with him.”

17. In the face of the clear procedure for service of summons set out in Sub-sections (3)(a) and (b) of Section 25B, no other provision of law in derogation of the same can be pressed in aid or relied upon. Under Sub-section (3)(b), the controller can declare valid service of summons only in the two events described therein and not otherwise.

18. Even assuming that the provisions of Order 5 Rule 15 can be read as supplementing the provisions in the Rent Act and Rule 22 relating to service of summons, the same have no application to the facts of this case as the pre-requisite condition of “there is no likelihood of his being found at the residence within a reasonable time………” was not found as a fact on record before permitting service on an adult if such an adult can at all, in the circumstances of this case, can be said to be residing with the petitioner.

19. It cannot be emphasised enough that, save in circumstances, expressly provided in law, service of summons has to be personal. It is common knowledge that the landlords are often tempted to cut short the due process of law by taking service of summons on the tenant and it is not only salutary but indeed necessary for the Rent Controller to probe their cord deeply and meticulously to ensure that the summons have been duly served before proceeding further. This is all the more important in proceedings under Section 25B of the Act where a very valuable right of defence is mercilessly and unalterably taken away on failure to appear and plead on or before 15 days from the fateful day of service of summons and the Rent Control authorities can do precious little to help.

20. Reliance was placed on the judgment of H.L Anand J., in Jagat Bam Khullar v. Battu Mal, A.I.R 1976 Delhi 1111, to invoke the presumption of service contained in Section 27, General Clauses Act. Suffice it to say that the pre-conditions in which the presumption can be raised do not exist here and the aforesaid judgment has, therefore, no application. Reliance was also placed on the judgment of Avadh Behari J., in Avinash Chander v. Rana Davi, 1979 Rajdhani Law Reporter 98. This judgment was based on the fact that a tenant had evaded service by a registered post and in these circumstances service by postal certificate and by pasting and affixing a copy of the summons at the premises was considered sufficient service for the purposes of service under Section 106 of the Transfer of Property Act. I am afraid the facts as well as the conclusions of this judgment have no application to the present case and it is for these reasons that I do not consider it necessary to discuss the above two judgments in any detail. In conclusion, the impugned order dated 19th October, 1977 is set aside and the learned Additional Rent Controller is directed to proceed with the matter from the stage on the petitioner having filed the application for leave to contest and the respondent having filed a reply thereto.

21. The petition is allowed with costs. Counsel's fee Rs. 300/-.

22. Petition allowed.

Om Prakash v. Brij Nath Sharma .

Structured Summary of the Opinion (Harish Chandra, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's (tenant's) Arguments

Respondent's (landlord's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Om Prakash v. Brij Nath Sharma .

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