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High Court Of Delhi
KARMA WALI - Appellant
Versus
RAJINDER SINGH - Respondent
SECOND APPEAL 190 of 1978
Decided On : 09/08/1978
RENT CONTROL ACT - EVICTION - SERVICE OF SUMMONS - VALIDITY - JURISDICTION OF RENT CONTROL TRIBUNAL - ESTOPPEL - APPEALABILITY - DELHI RENT CONTROL ACT, 1958 - S. 25B.
Fact of the Case:
The tenant, Rajinder Singh, was served with an eviction notice under Section 14(e) of the Delhi Rent Control Act, 1958. He did not appear or apply for leave to defend the case, leading to an ex-parte eviction order against him. The tenant filed an application to set aside the ex-parte order under Order 9 Rule 13 of the Code of Civil Procedure, which was dismissed by the Additional Controller. The tenant then filed a revision petition in the High Court, which was also dismissed. He then appealed to the Rent Control Tribunal, which allowed the appeal and remanded the case to the Additional Controller for a fresh decision after hearing evidence from both parties.
Finding of the Court:
The High Court held that the order of the Rent Control Tribunal was without jurisdiction as no appeal lies under Section 25B(8) of the Delhi Rent Control Act, 1958. However, the court also held that the landlady was estopped from raising the objection of jurisdiction due to her inconsistent positions in the case. The court further held that the Additional Controller erred in passing the eviction order without valid service of summons on the tenant, as required under Section 25B(3) of the Act.
Issues: 1. Whether the Rent Control Tribunal had jurisdiction to hear the appeal against the Additional Controller's order? 2. Whether the landlady was estopped from raising the objection of jurisdiction? 3. Whether the Additional Controller erred in passing the eviction order without valid service of summons on the tenant?
Ratio Decidendi: 1. The court held that no appeal lies to the Rent Control Tribunal under Section 38 of the Act against an order passed under Section 25B. 2. The court held that the landlady was estopped from raising the objection of jurisdiction as she had previously contended that the revision petition was not maintainable because an appeal lay to the Tribunal. 3. The court held that the Additional Controller erred in passing the eviction order without valid service of summons on the tenant, as required under Section 25B(3) of the Act. The court interpreted Section 25B(3) to mean that service by registered post is mandatory and must be done simultaneously with service in the ordinary way.
Final Decision: The High Court dismissed the landlady's appeal and directed the Additional Controller to decide the tenant's application after giving both parties an opportunity to adduce evidence.
( 1 ) 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. 00 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.
( 3 ) 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 exparte 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.
( 4 ) 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 Civil Procedure Code 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.
( 5 ) 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.
( 6 ) 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.
( 7 ) 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 v. Smt. Uma Verma (CR 577 of 1977) decided on August 2, 1978.
( 8 ) ONE main question arises on this submission. And that is about the justice of the plea. Counsel fo
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