HIMANSHU DAWER vs HEMCHAND & ORS.

$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01.04.2024
+ RC.REV. 18/2023
HIMANSHU DAWER ….. Petitioner
Through: Mr Sanjeev Mahajan and Ms Shikha Sapra, Adv.

versus

HEMCHAND & ORS. ….. Respondents
Through: Mr Narender Bhandari, Adv

CORAM:
JUSTICE GIRISH KATHPALIA

J U D G M E N T (ORAL)
1. By way of this petition brought under proviso to Section 25B(8) of the Delhi Rent Control Act, the petitioner/tenant has assailed order dated 31.10.2022 of the learned Additional Rent Controller whereby the eviction petition filed by the present respondents under Section 14(1)(e) of the Act was allowed since despite service of summons in prescribed format, the petitioner/tenant did not file any application seeking leave to contest the proceedings. On notice of the present proceedings, the respondents/ landlords entered appearance through counsel. I have heard learned counsel for both sides and examined the digitized record of the learned Additional Rent Controller.

2. Briefly stated, the circumstances relevant for present purposes are as follows. The present respondents claiming themselves to be the owners of premises bearing shop No. 158, situated at ground floor of property bearing No. 155-160, Ghee Mandi, Paharganj, Delhi filed eviction petition against the present petitioner under Section 14(1)(e) of the Act, pleading that the subject premises were bona fide required by them for commercial purposes. In the impugned eviction order, learned Additional Rent Controller recorded that despite three visits, the process server found the subject premises locked, so he pasted the summons in prescribed format outside the subject premises and since despite service of summons the present petitioner opted not to file any application seeking leave to contest, pleadings of the present respondents are deemed to be admitted, so the present petitioner was liable to be evicted from the subject premises.

3. In these proceedings under proviso to Section 25B(8) of the Act assailing the impugned eviction order, the basic contention raised on behalf of the petitioner/tenant is that the summons in prescribed format were not duly served insofar as admittedly the alleged service of summons was only through ordinary process and not simultaneously through the registered post as well, which is the requirement of law.

4. During arguments, learned counsel for petitioner/tenant has taken me through trial court record to show that the dual process of service of summons was not carried out in this case. Further learned counsel for petitioner/tenant explains that about issuance of the impugned eviction order, the petitioner/tenant came to know from another proceedings of similar nature filed by the present respondents/landlords, copy whereof is placed at pdf page 58 of paperbook. Learned counsel for petitioner/tenant also contends that according to the settled legal position, service of summons in the prescribed format has to be carried out simultaneously through ordinary process as well as registered post, which was not done in the present case. Further, it is contended on behalf of petitioner/tenant that the pasting of summons could not be resorted to by the process server at the very first instance, in order to ensure valid service of summons, especially in a case of the present nature where no witness came forward to record his statement before the process server.

5. On the other hand, learned counsel for respondents/landlords supports the impugned eviction order contending that there was no error in service of the summons in the prescribed format since despite repeated visits to the subject premises, the process server found the premises locked and he had no option but to paste the summons. Further, it is contended on behalf of respondents/landlords that since the petitioner/tenant was fully aware about pendency of the proceedings under Section 14(1)(e) of the Act he ought to have joined the same in time by filing an application seeking leave to contest.

6. According to the trial court record, the eviction petition was registered on 26.07.2022 in the court of learned Additional Rent Controller and summons were directed to be issued on steps to be taken within 07 days returnable on 01.10.2022. A copy of the trial court ordersheet dated 26.07.2022, placed at pdf page 95 of the paperbook reflects an endorsement dated 26.09.2022 of the Ahlmad of that court to the effect that summons through ordinary mode were served through affixation on 16.08.2022 but summons through registered post were not sent for want of postal stamps. In other words, the admitted position as per record is that summons in the prescribed format were sent only through ordinary process and not through registered post.

7. On this aspect, a Division Bench of this court in the case of Ashok Kumar vs Purshotam Lal Verma, (2016) 233 DLT 761 elaborately discussed the legal position and held thus:
“11. That the enactment prescribes two concurrent modes, is indisputable. The question is what is the effect, if both modes of service are to be undertaken simultaneously, rather than sequentially? Though there is a seeming legislative silence in that regard, in the opinion of this court, the effect and consequence is clear. The object of providing a special provision for service – in this part of the Act, is to ensure that there is speedy service of summons to the tenant; given that the procedure is special, aimed at quick disposal of the class of disputes envisioned in the chapter. The legislature thought it appropriate to ensure that two modes were simultaneously resorted to, having regard to past attempts (at service, where if the first notice of summons was not served in the ordinary way, the court would then issue summons under registered post) which inevitably lengthened proceedings due to the delay entailed. In the other regime, the question of one mode of service acquiring primacy over the other did not arise; if summons were served in the ordinary manner in the first instance that was deemed sufficient. However, having regard to past experience whereby if the first mode was unsuccessful, the second mode-through registered post, was resorted to, invariably entailing delay, both modes were insisted upon. This, in the court’s opinion did not alter the fact that both modes were “normal” but provided for so as to ensure that if through one, service was not effected, at least it was through the other. Therefore, both modes of service are effective; if service is completed through both, the question of one acquiring primacy over the other does not arise. The legislative mandate is unequivocal : “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, acknowledgement due.” Furthermore, the service of summons through publication is not mandatory, but depend upon the Controller’s opinion that “if the circumstances of the case so require.” These circumstances clearly show that the first two modes are compulsory and simultaneous. The first question therefore, has to be answered in the affirmative; both modes of service are to be resorted to simultaneously; one cannot be preferred over the other. Nor can one be made to await the other mode. Both have to be ordered together. At the same time, it does not follow that when one mode is successful and the other not so successful, service is not complete. In other words, the obligation to issue summons through two modes is mandated; however if one is completed and the other not completed, service is deemed completed in regard to the one where summons is served”.
(emphasis is mine)

8. I am in complete agreement with learned counsel for petitioner/tenant that service of summons in the prescribed format was not in accordance with law in the present case, because simultaneous with the ordinary process, the summons were not issued through registered post. It is not a case of the summons returning unserved; it is a case of summons not at all being sent through registered post for want of postal stamps.

9. Further, even as regards the service through ordinary process, I have been taken through the certified copies of reports of the process server on the summons. As per the said reports, the process server visited the subject premises on 04.08.2022, 12.08.2022 and 16.08.2022 but on all those occasions found the premises locked, so pasted the summons on 16.08.2022. This aspect was elaborately dealt with by a coordinate bench of this court in the case of Shyam Sunder Wadhawan vs Vivek Arya, (2014) 214 DLT 616, holding thus:
17. The conclusions are : –
(i) Merely because summons are addressed to the tenant but received by somebody else does not mean that in each and very such case the service is not a valid service whether there is or is not service/refusal depends upon the facts of each case.
(ii) If the summons is addressed to the tenant, and if the same is received by a person other than the tenant, but with consent/or knowledge or direction of the tenant, then the service is as effective as the service on the tenant. To clarity further, if summons are addressed to an agent of a tenant, then surely instead of the agent even the tenant himself can receive the same, then, why not a summons addressed to a tenant cannot be received by a person with consent or knowledge or direction of the tenant. A caveat : when a person other than the tenant receives the summons, the tenant must at that stage be in a place/state when he can file the leave to defend application within the prescribed period.
(iii) If the tenant uses subterfuges, including those cases where he is found to have endeavoured to conceal his personality, a court can, depending upon facts of a particular case hold that there is service/refusal of the summons.
(iv) Service effected directly by affixation is not a valid service but affixation done following the refusal to receive summons is a valid service.
(v) Summons sent by registered post, when are avoided to be received by the tenant, then in such circumstances where it is clear that the tenant has the knowledge that he must receive the registered post article, but yet he does not, it can as per facts of a case, be held that there is service/refusal by the tenant.”

10. Lastly, coming to the argument of learned counsel for the respondents/landlords that since the petitioner/tenant was aware about pendency of the eviction petition, he ought to have joined the proceedings on his own and failure to do so has to be at his peril, suffice it to record that mere knowledge of the tenant qua pendency of the proceedings of the present nature cannot absolve the landlord to ensure service of summons in the prescribed format in accordance with law, so as to enable the tenant file an effective application raising triable issues and consequently leave to contest. Chapter IIIA being a Code in itself, inserted by way of 1976 amendment in the Act has serious consequences, so technical aspects thereof have to be strictly adhered to. Most importantly, in the present case, the knowledge gained by the present petitioner was about passing of the impugned eviction order and not about pendency of the eviction proceedings. Therefore, I am unable to agree on this count with learned counsel for respondents/landlords.

11. In view of above discussion, I am unable to sustain the impugned eviction order, so the same is set aside and the petition is allowed. Matter is remanded to the court of learned Additional Rent Controller for proceeding in accordance with law.

12. As requested by learned counsel for petitioner/tenant, for refund of the use and occupation charges a formal application be filed so as to ensure fair hearing to the other side on that aspect.

GIRISH KATHPALIA, J.
APRIL 1, 2024/as

RC.REV. 18/2023 Page 1 of 8 pages