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2018 Supreme(Del) 500
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
SURAJ BHAN - Petitioner
Versus
ASHA - Respondent
RC.REV. 39 of 2018 & CM No. 4377 of 2018, CM(M) 954 of 2015
Decided On : 05-03-2018
For the Petitioner:Mr. Deepak Sharma & Mr. Manish, Advocates.
For the Respondent:Mr. Jai Bansal, Advocate
The main legal point established in the judgment is that the timeliness of the tenant's application for leave to defend in eviction proceedings is crucial, and the period for filing the leave to defend is counted from the first date of service, as clarified under Section 25B of the Delhi Rent Control Act, 1958.
Headnote:
Eviction - Delhi Rent Control Act, 1958 - Section 14(1)(e), Section 25B - The court discussed the issue of the application for leave to defend being filed within the statutory period of 15 days after service. The court referred to the ruling in Frank Anthony Public School vs. Amar Kaur and a decision of the division bench in Ashok Kumar vs. Purshotam Lal Verma, which clarified that both modes of service are mandated and have to be resorted to simultaneously by the Controller. However, if service through one mode is completed or successful, that is deemed sufficient, irrespective of whether the other mode is successful or not. The period of 15 days for filing the leave to defend has to be counted from the first date of service. Time, for the purpose of filing leave to defend, does not depend on the second service of summons.
Fact of the Case:
The case involved eviction proceedings initiated by the landlord against the tenant on the ground of bona fide need under Section 14(1)(e) of the Delhi Rent Control Act, 1958. The issue revolved around the timeliness of the tenant's application for leave to defend.
Finding of the Court:
The court set aside the objection of the landlord regarding the belated application for leave to defend and upheld the order of eviction against the tenant due to default in timely submitting the application. The interim order of stay against execution of the eviction order was vacated, and the tenant's petition was dismissed.
Issues: The main issue was whether the application for leave to defend was filed within the statutory period of 15 days after service, as required under Section 25B of the Delhi Rent Control Act, 1958.
Ratio Decidendi: The court clarified that both modes of service are mandated and have to be resorted to simultaneously by the Controller. The period of 15 days for filing the leave to defend has to be counted from the first date of service, and it does not depend on the second service of summons.
Final Decision: The court allowed the landlord's petition for eviction and upheld the order of eviction against the tenant due to default in timely submitting the application for leave to defend. The interim order of stay against execution of the eviction order was vacated, and the tenant's petition was dismissed.
1. Both these petitions arise out of the proceedings relating to the eviction case (E No. 68/2014 – new ARC 25867/2016) registered on the application of Suraj Bhan (landlord) who is petitioner in CM (M) 954/2015 and respondent in RC Rev.39/2018 – seeking an order of eviction on the ground of bona fide need under Section 14 (1) (e) of Delhi Rent Control Act, 1958 which is governed by the special procedure envisaged in Section 25 B of the said enactment, such proceedings being directed against Asha (concededly a tenant) in the premises in question.
2. It appears the tenant had earlier filed an application for leave to defend in the afore-said proceedings on 20th August, 2014, the landlord having raised the issue of such application having been filed belatedly beyond the statutorily permissible period of 15 days after service in terms of Section 25 B of Delhi Rent Control Act, 1958. The objection about the application for leave to defend being filed belatedly and hence not maintainable was considered by the Additional Rent Controller and rejected by order dated 25.08.2015 which was challenged by the landlord by CM (M) 954/2015.
3. Later, however, the new presiding officer in the Court of Additional Rent Controller reconsidered the said issue and by order dated 16.08.2017, observed that the application for leave to contest was belated not having been presented within the statutorily permissible period of 15 days after service. He also went into the merits of the application for leave to defend and returned a finding that no triable issues had been raised, consequently passed an order of eviction on 16.08.2017 which is challenged by the tenant by RC Rev. 39/2018.
4. The issue to be considered in these proceedings, thus, is as to whether the application for leave to defend concededly submitted on 20.08.2014 was within the statutory period of 15 days after service or not.
5. The learned counsel on both sides have been heard and the record has been perused with their respective assistance.
6. It is seen from the record that the eviction petition came up before the Additional Rent Controller for the first time on 07.06.2014. It was kept for consideration on 25.07.2014. The Additional Rent Controller was satisfied that a case had been made out for special summons to be issued in the form prescribed under Schedule-III, Delhi Rent Control Act, 1958 relatable to Section 25 B. He thus, directed such summons to be issued upon steps to be taken inclusive of filing of registered cover, the process to be returnable on 27.09.2014. The process in terms of the said direction under Section 25 B, was issued on 28.07.2014, cautioned the tenant that she would be required to appear before the Rent Controller within 15 days of the service and to obtain leave of the Rent Controller to contest the application for eviction and further that in case of default of such steps being taken, the applicant landlord would be held entitled at any time after expiry of the said period of 15 days to obtain an order of eviction from the subject premises. Concededly, the process was duly served on the tenant personally on 03.08.2014, the process server having made a statement to this effect on the basis of process server report (Ex. PS-1/A) on 28.10.2014.
7. Since the order had directed the attempt of service through additional mode of registered post acknowledgement due (RCAD) another summons under Section 25 B of Delhi Rent Control Act had also been sent by such mode. The report of the postal official on the said registered cover indicates an attempt was made for service on 5,6 & 7 August, 2014 but the premises was found locked and, thus, the postal article could not be delivered.
8. It is against the above backdrop that the landlord prayed before the Additional Rent Controller that the tenant having been served personally on 03.08.2014, the application for leave to defend which was supported by affidavit of the claimant sworn on 20.08.2014 had been filed belatedly and
