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Savitri Devi v. Nathu Ram .
Judgment Summary — Sultan Singh, J. (Oral)
Factual and Procedural Background
This revision arises under Section 25B(8) of the Delhi Rent Control Act, 1958, challenging the order of the Additional Rent Controller dated 5.3.1981 which dismissed the petitioner's application for leave to defend and, consequently, passed an order of eviction against the petitioner under Section 14(1)(e) of the Act.
The respondent-landlord filed the eviction application on 11.12.1979. Summons were ordered to be issued both in the ordinary manner and by registered A.D. post. A process server purportedly served the petitioner personally on 4.1.1980, and a registered postal receipt bearing No. 5304 dated 4.1.1980 appears on the record; an attested copy of a receipt recording delivery to the petitioner on 7.1.1980 was later placed on record in revision proceedings. The petitioner filed an application for leave to defend on 12.5.1980 and (later) an application under Section 4 of the Limitation Act for condonation of delay on 3.12.1980. She also filed an application under Order 9 Rule 13, CPC on 30.4.1980.
The Additional Rent Controller found that the petitioner had been personally served on 4.1.1980 and that the application for leave to defend, having been filed after the statutory period of 15 days, was time-barred; the Controller dismissed the leave application and ordered eviction. The petitioner challenged that order by way of revision.
Legal Issues Presented
- Whether the petitioner was validly served with summons such that the period for filing an application for leave to defend began to run (i.e., validity of personal service on 4.1.1980 and service by registered A.D. post dated 4.1.1980 with delivery on 7.1.1980).
- Whether the application for leave to defend filed on 12.5.1980 was barred by the 15-day period prescribed for leave to defend under the Rent Act and whether any delay could be condoned.
- Whether the procedure and presumptions relating to service under Section 25B(3) of the Delhi Rent Control Act (a special provision) or Order 5 Rule 19A, CPC (general Civil Procedure provision) govern the question of service and the consequent presumption of service.
- Whether the Limitation Act (and specifically Section 5) applies so as to permit condonation of the 15-day period for filing leave to defend before the Rent Controller.
Arguments of the Parties
Petitioner's Arguments
- The petitioner denied being personally served on 4.1.1980 and alleged fraud: the respondent, with a process server, obtained her signature on the back of the summons by falsely representing that the process server was a municipal officer installing a water meter; the respondent then took away the summons and eviction petition.
- The petitioner, an illiterate 70-year-old woman with poor eyesight and ill health, asserts she first became aware of the eviction proceedings on 28.4.1980 and inspected court records only thereafter, filing the leave to defend on 12.5.1980.
- On these grounds the petitioner sought condonation of delay and to set aside the eviction order.
Respondent's Arguments
- The respondent contended that summons were properly sent both in the ordinary manner and by registered A.D. post, that personal service occurred on 4.1.1980, and that the registered article was delivered on 7.1.1980.
- It was submitted that no objection to service by registered post was raised in any of the petitions filed by the tenant (including the leave to defend application filed on 12.5.1980 and the condonation application of 3.12.1980), and that no averment of non-service by registered post on 7.1.1980 was made.
- The respondent relied on the procedure in Order 5 Rule 19A, CPC for service by registered post and argued the tenant was duly served under that provision; therefore there was no justification for failing to apply for leave to defend within the 15-day statutory period.
- The respondent opposed setting aside the eviction order or condoning delay under Section 5 of the Limitation Act, asserting that the Limitation Act does not apply to proceedings before the Rent Controller.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gurdittamal v. Bal Sarup, XVII DLT (1980) 172 | This Division Bench held that the limitation provision for applying for leave to defend requires strict construction; the 15-day period prescribed in the Third Schedule cannot be condoned under Section 5 of the Limitation Act and the period cannot be extended because the Limitation Act does not apply to proceedings before the Rent Controller. | The court relied on this authority to support the conclusion that the statutory 15-day period for applying for leave to defend must be strictly observed and that condonation under Section 5 is not available in proceedings before the Rent Controller. |
| Jagdish Pershad v. Phoolwati Devi, XVII DLT (1980) 446 | Same principle as Gurdittamal: strict construction of the limitation period for leave to defend; Section 5 Limitation Act cannot be used to condone the 15-day period in proceedings before the Rent Controller. | The court treated this decision as reinforcing that delay in filing leave to defend cannot be condoned under Section 5 and that the Limitation Act does not extend the statutory period in Rent Controller proceedings. |
| Subhash Chander v. Rehmat Ullah, I.L.R. 1973 (1) 181 | Held that the Limitation Act applies to Courts and that the Rent Controller is not a Court; therefore the Limitation Act is inapplicable to proceedings before the Rent Controller. | The court cited this authority to support the proposition that the Limitation Act does not apply to the Rent Controller and that the statutory period for leave to defend before the Rent Controller cannot be extended by invoking Section 5. |
Court's Reasoning and Analysis
The court proceeded through the following analytical steps, applying statutory provisions, evidential presumptions, and relevant precedents as stated in the record:
- Service regime: The court compared the service provisions in Section 25B(3) of the Delhi Rent Control Act (which requires issue of summons both in the ordinary manner and by registered post and provides that receipt of an acknowledgment enables the Controller to declare valid service) with Order 5 Rule 19A, CPC (which contains analogous provisions for courts). The court observed that the Rent Act provision is a special procedure and therefore prevails over the general procedure in the Code; accordingly, Order 5 Rule 19A was held not to be applicable to the Rent Controller proceedings in this matter.
- Evidence of service by post: The court examined the record and found a postal registration receipt at page 199 bearing No. 5304 dated 4.1.1980. Although an acknowledgment was not in the trial court record, an attested copy of a receipt showing delivery to the petitioner on 7.1.1980 was filed in revision proceedings. The court held that even if the A.D. card was not on the trial court file, the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act would operate to infer that a registered article sent in the ordinary course was duly served.
- Credibility of petitioner's explanation: The petitioner’s account of fraudulently being induced to sign was disbelieved by the Additional Rent Controller; the revisional court found no reason to reverse that credibility finding. The court also noted the long history of litigation between the parties (matters dating from 1973 onwards), concluding that it was implausible that the petitioner would sign and return the summons and eviction petition in the manner alleged.
- Timing of leave application and lack of sufficient cause: The court observed the registered cover was delivered on 7.1.1980 and asked why the petitioner did not file leave to defend within 15 days from that date. The petitioner waited until 12.5.1980 to file the leave application; no adequate explanation for the delay was presented. Given the earlier litigation history and the petitioner’s conduct, the court found no sufficient cause to grant condonation or to set aside the eviction order.
- Precedent on limitation: The court relied on Division Bench authorities (Gurdittamal and Jagdish Pershad) holding that the 15-day period for applying for leave to defend is to be strictly construed and cannot be condoned under Section 5 of the Limitation Act because the Limitation Act does not apply to Rent Controller proceedings; Subhash Chander was invoked to underline that the Limitation Act is inapplicable to Rent Controller proceedings. The court used these authorities to confirm that the statutory period could not be extended.
- Conclusion of law: On the basis of the presumptive proof of service by registered post, the absence of a satisfactory explanation for the delay in filing for leave to defend, and the binding approach adopted in the cited precedents regarding strict limitation, the court held the Additional Rent Controller’s factual and legal findings to be correct and not warranting interference in revision.
Holding and Implications
Holding: The revision petition is dismissed. The order of the Additional Rent Controller dated 5.3.1981 dismissing the petitioner's application for leave to defend and directing eviction under Section 14(1)(e) of the Act is upheld. The court dismissed the revision with no order as to costs. The judgment records: "Revision dismissed."
Implications:
- Direct effect: The eviction order passed by the Additional Rent Controller remains in force; the petitioner’s application for leave to defend was properly dismissed as time-barred and the revision does not succeed.
- Procedural consequence: The court affirmed that the special service provisions in the Rent Act (Section 25B) prevail over the general Civil Procedure provision (Order 5 Rule 19A) for proceedings before the Rent Controller, and that presumptions arising from registered post and statutory evidential provisions (Section 27, General Clauses Act; Section 114, Evidence Act) may be invoked where the postal receipt and related material are on record.
- On precedent and limitation: The decision follows earlier Division Bench authority that the 15-day period for applying for leave to defend in Rent Controller proceedings must be strictly construed and is not subject to condonation under Section 5 of the Limitation Act; the opinion does not claim to establish a new principle beyond applying those authorities.
No other broader legal principle or new precedent was declared; the court affirmed the controller's order and did not interfere.
Sultan Singh, J. (Oral):— This revision under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) challenges the order of the Additional Rent Controller dated 5.3.1981 dismissing the petitioner's application for leave to defend and consequently passing an order of eviction against her under Section 14 (1) (e) of the Act.
2. The respondent-landlord filed an application for eviction of the petitioner-tenant under Section 14(1) (e) of the Act on 11.12.1979
3. Summons in the ordinary manner as well as by registered A.D post were ordered to be issued. Summons sent to the petitioner through process server upon her on 4.1.1980 Another summons was sent by registered A.D post under postal receipt No. 5304 dated 4.1.1980 The petitioner filed an application for leave to defend on 12.5.1980 and another application under Section 4 of the Limitation Act for condonation of delay in filing the application for leave to defend on 3.12.1980 The petitioner had also filed another application on 30.4.1980 under Order 9 Rule 13 of the Code of Civil Procedure presuming that there was already an ex-parte order of eviction against her. The Controller after hearing the parties held that the petitioner-tenant was served on 4.1.1980 personally, that the application for leave to defend having been filed after the expiry of more than 15 days was barred by time and therefore, dismissed the same.
4. The learned counsel for the petitioner submits that the petitioner was not served on 4.1.1980 He submits that on 4.1.1980 a fraud was played by the respondent on her who is an illitrate household lady aged 70 years and generally remains sick due to weakness, age and short of eye-sight, that the respondent came to the petitioner along with one process server and got her signatures on the back of summons on the pretext that the process server was an officer from the Corporation and wanted to install a water meter in the connection from which she was getting water as the same was unmetered and for that purpose she would have to sign the paper. She further alleges that the respondent after getting her signatures took away the summons as well as the copy of the eviction petition, and that she came to know for the first time about the eviction proceedings on 28.4.1980 Her story is that one S. Sadhu Singh who was in need of residential accommodation met the respondent for taking suit premises for his newly married son and that the respondent told him that an eviction order was going to be passed and after that he would take possession immediately and let out the same to S, Sadhu Singh. The petitioner further says that the Court record was examined immediately thereafter and the leave to defend application was filed on 12.5.1980
5. The learned counsel for the respondent on the other hand submits that summons of the eviction application was sent in the ordinary manner as well as by registered A.D post, that personal service was effected on her on 4.1.1980 while service by registered post was effected on 7.1.1980 He submits that the petitioner's allegations were false, that there was no allegation of non service by registered post on 7.1.1980 in any application either for leave to defend filed on 12.5.1980 or for condonation of delay filed on 3.12.1980 He further says that there was no averment even in the application purporting to be under Order 9 Rule 13 of the Code filed on 30.4.1980 His contention is that the tenant was duly served under Order 5 Rule 19A of the Code and therefore, there was no ground for the petitioner not to apply for leave to defend within a period of 15 days as prescribed under the statute. Section 25B (3) of the Delhi Rent Control Act, 1958 reads as under:
“(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 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 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.”
6. Order 5 Rule 19A of the Code of Civil Procedure reads as under:
“(1) The Court shall, in addition to, and simultaneously with the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent actually and voluntarily resides or carries on business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.
(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him the Court issuing the summons shall declare that the summons had been duly served on the defendant:
Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons.”
7. Under both the provisions contained under the Act and the Code, service is required to be effected in the ordinary manner as well as by registered A.D post. As regards service by registered post, it has been provided that where an acknowledgment purporting to be signed by the tenant is received by the Court, the Court issuing the summons may/shall declare that the summons has been duly served on the defendant. Under the Rent Act the word ‘may’ while under Order 5 Rule 19A of the Code the word ‘shall’ has been used. Further it has been provided in the Code that if an acknowledgment is not received, lost or mislead for any reason within a period of 30 days from the date of issue of the summons the Court is empowered to make the declaration of due service. Provision for service contained in the Rent Act is a special procedure and therefore, it would prevail over the procedure prescribed by the Code of Civil Procedure. Order 5 Rule 19A of the Code is therefore, not applicable. The learned counsel for the parties have taken me through the record and I find that there is a postal registration receipts at page 199 of the record bearing No. 5304 dated 4.1.1980 The acknowledgment receipt however is not available on record. Thus the Controller was justified in drawing a presumption of service by post which was sent on 4.1.1980 When the petitioner filed the revision in this Court the respondent filed on record an attested copy of the receipt relating to the said registered article delivered to the petitioner-tenant on 7.1.1980 Even if the A.D card was not received in the trial Court the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act would be that summons sent by registered A.D post was duly served upon the petitioner in the ordinary course. She was thus duly served under Section 25B (3) of the Act. The learned counsel for the petitioner however, submits that the summons purporting to have been served personally on 4.1.1980 was taken back with the copy of the application from the petitioner-tenant. These facts have been disbelieved by the Additional Rent Controller and there is no reason to reverse the said finding. From the record it is clear that the respondent filed a suit for possession against the petitioner on 28.4.1973 which was dismissed on 17.12.1975 by the Subordinate Judge, Delhi. Again a suit for recovery of rent was filed on 28.5.1976 which was decreed on 26.2.1977 Lastly the respondent filed an application under Section 19 of the Slums Areas (Improvement and Clearance) Act, 1956 on 11.8.1977 seeking permission to institute an application for eviction of the tenant. Necessary permission was granted on 11.10.1979 The present petition under Section 14(1) (e) read with Section 25B of the Act was filed on 11.12.1979 The parties have been litigating for one reason or the other since April 1973. In view of these circumstances it does not stand to reason that the petitioner would sign the summons on 4.1.1980 and return the same along with the eviction application to the respondent on the alleged pretext. Moreover the registered cover containing the summons was served upon her on 7.1.1980 The application for leave to defend admittedly was filed on 12.5.1980 after inspecting the record. The postal receipt dated 4.1.1980 was available on the record. The petitioner-tenant was in the knowledge of all these facts that she was served by registered post and that postal receipt was available on the record but no objection regarding service by post was raised. Thus I am of the view that the petitioner was served on 4.1.1980 and in any case on 7.1.1980 No explanation is forth coming why the application for leave to defend was not filed within 15 days from 7.1.1980 The two Division Benches of this Court namely Gurdittamal v. Bal Sarup, XVII DLT (1980) 172 and Jagdish Pershad v. Phoolwati Devi. XVII DLT (1980) 446 have laid down that the provision about limitation for applying leave to defend needs strict construction and that the period of 15 days prescribed in Third Schedule cannot be condoned under Section 5 of the Limitation Act and that the said period cannot be extended as the Limitation Act does not apply to proceedings before the Rent Controller. It has been held by this Court in Subhash Chander v. Rehmat Ullah, I.L.R 1973 (1) 181 that the Limitation Act applies to Court and that Rent Controller is not a Court and therefore, Limitation Act is inapplicable. The learned counsel relying upon Jagdish Pershad (supra) further submits that this Court may exercise the power to set aside the eviction order and grant leave to defend on the analogy of Order 37 Rule 4 of the Code of Civil Procedure. The facts as already stated do not disclose any sufficient cause for her failure to file an application for leave to defend within time. Nothing has been brought to my notice as to why no action was taken after service by registered post on 7-1-1980. Further there is no explanation why the petitioner-tenant waited upto 12-5-1980. The previous history of litigation between the parties and the petitioner's conduct for the present case leads me to the conclusion that there was no sufficient cause for condoning the delay or setting aside the eviction order on the alleged ground. There is no merit in the revision petition. The order passed by the Additional Rent Controller is according to law. It does not call for interference. The revision petition is dismissed with no order as to costs.
8. Revision dismissed
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