Full Judgement
Delhi High Court
Harish Kumar & Anr vs Vijay Kumar Aggarwal & Anr on 31 July, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 24, 2024
Decided on: July 31, 2024
+ RC.REV. 69/2018
HARISH KUMAR & ANR
.....Petitioners
Through: Mr. Jaspreet Singh and
Ms. Nandini Singh
Advocates
V
VIJAY KUMAR AGGARWAL
AND ANR
.....Respondents
Through: Mr. Rajesh Katyal, Advocate
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present revision petition is filed under section 25-B(8) of the
Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act")
read with section 151 CPC to set aside the order dated 19.08.2017
passed by the Court of Ms. Namrita Aggarwal, Pilot Court (Central),
Tis Hazari Courts, Delhi in eviction petition bearing E no. 428/17
(New no. 491/17) titled as Vijay Kumar Aggarwal & Anr. V
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 1 11:20:01 Harish Kumar & Anr. (hereinafter referred to as the "impugned
order no.1") whereby the eviction petition was allowed in favour of
the respondents/landlord and the petitioners/tenants were directed to
vacate the property and to set aside the order dated 19.02.2018 passed
by the court of Sh. Susheel Bala Dagar, Pilot Court (Central), Tis
Hazari Courts, Delhi (hereinafter referred to as the "impugned order
no.2") in case bearing no. M-10/18 (CIS no. M-27/18) whereby the
review application moved by the petitioners/ tenants was dismissed
as rejected.
2. The factual background of the case is that the
respondents/landlord/owner (hereinafter referred to as the
"respondents") are the owners of the properties bearing no. one shop
bearing Private no.4, forming part of property bearing no. 10240-
10244 & 10248, Ground Floor, Vijay Chambers, Library Road, Azad
Market, Delhi-110006 (hereinafter referred to as the "tenanted
premises") by virtue of two sale deeds executed by previous owners
namely Amita Mohan and Anjul Mohan. The petitioners/tenants
(hereinafter referred to as the "petitioners") were inducted as tenants
in respect of the tenanted premises by the previous owners on a
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 2 11:20:01 monthly rent of Rs.267/- besides other charges for commercial
purposes. The respondent no.1 is the proprietor of M/s Aggarwal
Canvas Company and is a wholesaler/distributor/supplier of
tarpaulins, water proof canvas, tents etc. and is running his business
at 245, Azad Market, Delhi-110006. The respondent no 1 is having
its showroom at 245, Azad Market, Pelhi-110006 situated at Ground
Floor while first, second and third floors are being used as godown.
The respondent no 1 has to store products including poplin, tarpaulin,
canvas etc. for meeting the daily requirements of the customers and
as such requires space/godown to store the products for carrying on
his business and the respondents do not own/possess any other
premises for said purpose. The tenanted premises let out to the
petitioners are situated at Azad Market and are at walking distance
from the place where the respondent no.1 carries on his business. The
respondents filed an eviction petition bearing E no. 428/17 (New no.
491/17) under section 14(1)(e) read with section 25B of the Act
against the petitioners on the ground of bona fide requirement of the
tenanted premises which were let out to the petitioners.
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3. The court of Ms. Namrita Aggarwal, Pilot court, Central, Tis
Hazari Courts, Delhi (hereinafter referred to as the "trial court")
vide order dated 02.06.2017 ordered for issuance of summons to the
petitioners and summons be served by registered post with
acknowledgment due for 10.07.2017. The process serving agency
was also directed to execute and serve process preferably within 3
days. It was also ordered that in case the respondents refuse to accept
service or not found available despite three mandatory visits then the
process server shall affix the summons at a conspicuous place of the
respondents and leave the copy of the petition and annexure as per
procedure. The process server as per the report visited the tenanted
premises on two occasions on 07.06.2017 and the tenanted premises
were found locked. The process server again visited the tenanted
premises third time on 08.06.2017 but again premises were found
locked and thereafter summons were affixed at the tenanted premises.
The trial court vide order dated 10.07.2017 observed that the
petitioners were served through affixation on the address on
08.06.2017 but despite service. However, despite service none has
appeared on behalf of the petitioners. The respondents were
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petitioners through publication in local newspaper which is circulated
in the area where tenanted premises are situated or the petitioners
work for gain and publication of summons was ordered to be in daily
newspaper "Veer Arjun". The trial court vide the impugned order
no.1 dated 19.08.2017 observed that no application for leave to
defend was filed by the petitioners after the expiration of period of
one month despite the service of summons through publication and
accordingly, an eviction order i.e. the impugned order no.1 under
section 14(1)(e) of the Act was passed in favour of the respondents
and against the petitioners in respect of the tenanted premises. The
relevant portion of the impugned order no.1 dated 19.08.2017 is
reproduced as under:-
This is a petition for eviction on the ground provided under Section 14(1)(e) DRC Act. That the respondent was served with the summons of the petition through publication on 18.08.2017. The period of one month from the date of publication has already expired but none has come forward on behalf of the respondent to file leave to defend application.
Thus, in terms of provisions of Section 25 B (4) of Act, the statement made by the landlord in the petition for eviction shall be deemed to be admitted by the tenant and petitioner shall be entitled for an order of eviction. In such
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 5 11:20:01 circumstances, further inquiry to conclude as to whether grounds of eviction are made out, is not required by law. In this regard, reliance can be placed on following case-laws
a). Krishan Kumar Vs. Vinod Kumar & Anr., reported as 148 (2008) DLT 668.
b). Shri Bachan Singh VS. Shri Khem chand, reported as 1987 (1) RCR 556.
c). Smt. Bhuvneshwari Devi Vs. Col. Kaiyan Singh, reported as 1993 (3) RLR 133.
For the reasons recorded above, an eviction order is passed and the respondents are directed to vacate the tenanted' premises, i.e., One shop bearing private No. 4, forming part of property bearing No. 10240-10244 & 10248, Ground Poor, Vijay Chambers, Library Road, Azad Market, Delhi- 110006, as shown in red colour in site plan marked Ex. 'P' today. However, the petitioner would not be entitled for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. No order as to costs.
4. The petitioners filed a review petition bearing case no. M-10/18
(CIS no M-27/18) against the impugned order no.1 dated 19.08.2017.
The court of Sh. Susheel Bala Dagar, Pilot Court (Central), Tis
Hazari Courts, Delhi vide the impugned order no.2 dated 19.02.2018
dismissed the review petition by observing that the service was duly
affected on the petitioners by way of publication in "Veer Arjun"
newspaper which is duly circulated in the area of Delhi where the
tenanted premises are situated as after the service of summons was
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 6 11:20:01 effected by way of affixation as tenanted premises were found locked
on three visits of the process server. It was also observed that the
petitioners did not furnish any reason for the premises being locked
nor has contradicted the fact of the premises being locked. It was
further observed though registered AD has not been received back
but there is presumption of service as per Section 27 of General
Clauses Act, 1897. The relevant portion of the impugned order no.2
dated 19.02.2018 is reproduced verbatim as under:-
Further, in this case, it is relevant to note that affixation is an act consequent upon premises being found locked and affixation is not taken in itself as a service. The service was duly affected on the applicant/respondent by way of publication in "Veer Arjun" newspaper which is duly circulated in the area of Delhi where the tenanted premises is situated, after the service of summons was done by way of affixation as on three visits the process server found the premises locked. It is pertinent to mention that the respondent has not furnished any reason for premises being locked nor has contradicted the fact of locking of the premises. Even though registered AD has not been received back, but as per Section 27 of General Clauses Act, 1897, presumption of service by way of post arises.
In these circumstances, the respondents cannot be allowed to feign ignorance of the summons served by way of affixation on the tenanted premises and also served by way of publication in the local newspaper. No document has been produced by the applicants/respondents to show that the petitioners/landlords had any earlier knowledge that the respondents/tenants would not be available or will not
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 7 11:20:01 check the tenanted premises. This contention of the applicants/respondents is not found to be tenable.
No ground for review is made out. Accordingly, review application moved by the applicants/tenants is dismissed as rejected.
5. The petitioners being aggrieved filed the present petition to
challenge the impugned orders on amongst other grounds that the
impugned orders are against the law and facts of the case and trial
court did not consider that proper service was not affected on the
petitioners as there was no requirement for alternative service on the
petitioner. The service by affixation was not affected in accordance
with law and summons sent through the registered post and
acknowledgement was not returned back. The impugned order no 1
dated 19.08.2017 was passed without any observation that the
petitioners were intentionally avoiding the service of the summons.
The trial court has failed to observe that there was no bona fide
requirement of the respondents as the respondents are having various
other shops in the same premises which they have let out at higher
rental after getting the same evicted. The trial court in the impugned
order no 2 held against the law that affixation is a valid service as per
order dated 10.07.2017.
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6. Sh. Jaspreet Singh, counsel for the petitioners argued that the
petitioners were not validly served with the summons in the eviction
petition as per section 25B of the Act and the service of summons by
affixation is not a valid service. The petitioners could not file the
application for leave to defend as the petitioners were not duly served
with the summons and the trial court vide the impugned order no.1
dated 19.08.2017 allowed the eviction petition without considering
the fact that the summons have not been served upon the petitioners.
It was further argued that the petitioners in review petition also
pleaded that the petitioners were not properly served with the
summons and service by way of affixation and publication in the
newspaper Veer Arjun dated 18.07.2017 is not a valid service as the
newspaper Veer Arjun is not in circulation in the area where tenanted
premises are situated. Sh. Rajesh Katyal, Advocate for the
respondents argued that the petitioners were served with summons as
per the Third Schedule of the Act in accordance with section 25B of
the Act and trial court rightly passed eviction order in favour of the
respondents in respect of tenanted premises and present petition is
liable to be dismissed.
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7. It is reflecting that the petitioners are tenants at the tenanted
premises at a monthly rent of Rs.267/-. The respondents filed an
eviction petition under section 14(1)(e) read with section 25B of the
Act wherein the trial court vide order dated 02.06.2017 ordered that
the petitioners be served by registered post with acknowledgment due
for 10.07.2017 with direction that service be also affected through
affixation if the respondents refuse to accept service or not found
available despite three mandatory visits of the process server. The
process server visited the tenanted premises two times on 07.06.2017
and again on 08.06.2017 but the tenanted premises were found
locked and thereafter service was affected through affixation. The
trial court vide order dated 10.07.2017 directed that the respondents
to take requisite steps for service upon the petitioners through
publication in local newspaper Veer Arjun. The trial court vide the
impugned order no.1 dated 19.08.2017 passed the impugned order
no.1 i.e. the eviction order under section 14(1)(e) of the Act in favour
of the respondents and against the petitioners in respect of the
tenanted premises as application for leave to defend was not filed by
the petitioners despite the service of summons through publication.
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 10 11:20:01 The petitioners also filed a review petition against the impugned
order no.1 dated 19.08.2017 which was dismissed vide the impugned
order no.2 dated 19.02.2018 by observing that the service was duly
affected on the petitioners by way of publication in "Veer Arjun"
newspaper which is duly circulated in the area of Delhi where the
tenanted premises are situated.
8. Chapter III-A of the Act deals with summary trial of certain
applications and section 25B of the Act deals with special provision
for the disposal of application for eviction on the ground of bona fide
requirement. Section 25B(1) of the Act provides that the application
for eviction on the ground of bona fide requirement shall be dealt
with in accordance with the procedure specified under section 25B.
Sub-section (2) also provides that the Controller shall issue the
summons in relation to every application as referred in sub-section
(1) in the form specified in the Third Schedule. Sub-section (3)
provides that the summons are required 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
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 11 11:20:01 personally works for gain. It further provides that the summons may
also be issued by way of publication 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. Sub-section (4) further
provides that the tenant on whom the summons is duly served in the
form specified in the Third Schedule shall not contest the prayer for
eviction from the premises unless he files an affidavit stating the
ground on which he seeks to contest the application for eviction and
obtains leaves from the Controller. It further provides that in default
of the appearance in pursuance of summons or his obtaining such
leave, the statement made by the landlord in the application for
eviction shall be deemed to be admitted by the tenant and the
applicant shall be entitled to an order for eviction on the ground of
bona fide requirement. The Supreme Court in Prithipal Singh V
Satpal Singh (Dead) through its LRs, (2010) 2 SCC 15 observed as
under:-
12. Sub-section (2) of Section 25B of the Rent Act says that the Controller shall issue summons in relation to every application referred to in sub-section 1 in the form specified in the Third Schedule.
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13. Sub-section (3) (a) of Section 25B provides that Controller, in addition to and simultaneously with, the issue of summons for service on the tenant, also directs 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. A reading of sub- section (3)(a) of Section 25B would clearly indicate that in a proceeding under Section 14(1)(e), how the tenant can be served intimating institution of the eviction proceeding and date fixed for hearing of the same.
14. Sub-section (3)(b) of Section 25B says when the acknowledgement 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.
15. Next comes the very important provision in Section 25B of the Rent Act, i.e., sub-section (4) of the same. It clearly provides that a tenant on whom the summons is duly served in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller, as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 13 11:20:01 be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
16. From a careful perusal of sub-section (4) of Section 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the Controller stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller. This Section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceeding shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition. At this stage, we may also note that in sub- section (4) of Section 25B of the Rent Act read with Third Schedule, it has been made clear by the Legislature that if the summons of the proceeding is received by the tenant, he has to appear and ask for leave to contest the eviction proceeding within 15 days from the date of service of notice upon the tenant and if he fails to do so, automatically, an order of eviction in favour of the landlord on the ground of bona fide requirement shall be made.
9. The trial court in the present case after institution of eviction
petition under section 14 (1)(e) of the Act vide order dated
02.06.2017 ordered for issuance of summons on the petitioners as per
section 25B of the Act and in addition to this summons were also
ordered to be served by registered post with acknowledgement due.
The trial court due to abundant precaution also ordered for service of
summons through affixation in case petitioners refused to accept
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 14 11:20:01 service or not found available despite three mandatory visits. It is
correct that service through affixation is not a prescribed mode of
service as per section 25B but the trial court ordered for service of
summons through affixation in addition to mandatory mode of
service i.e. issuance of summons as per third schedule and registered
post with acknowledgment due. There was illegal on part of the trial
court if service through affixation was ordered in addition to service
by issuance of summons as per third schedule and through registered
post with acknowledgement due. The trial court vide order dated
10.07.2017 also ordered for service through publication in local
newspaper which is in circulation in the area where tenanted
premises were situated. The petitioners were also served through
publication in daily newspaper Veer Arjun on 18.07.2017 which also
prescribed mode of service as section 25B of the Act. The petitioners
despite being served though publication did not file an application for
leave to defend along with affidavit stating therein grounds on which
the petitioners being tenant seek to contest the application for
eviction and obtains leave from the trial court and accordingly
statement made by the respondents in the application for eviction was
Signature Not Verified Digitally Signed By:NIDHI Signing Date:02.08.2024 RC.REV. 69/2018 Page 15 11:20:01 deemed to be admitted by the petitioners entitling the respondents to
an order for eviction. The trial court in impugned order no 1 dated
19.08.2017 rightly and legally passed the eviction order in respect of
tenanted premises as the petitioners did not file an application for
leave to defend along with affidavit within stipulated time. The trial
court in impugned order no 2 dated 19.02.2018 rightly observed that
the petitioners were duly served by way of publication and as a
consequence of which an eviction order in respect of tenanted
premises was passed due to failure of the petitioners to apply for
leave to defend along with affidavit. The arguments advanced by the
counsel for the petitioners are without any merit and do not deserve
to be accepted. There is no infirmity or illegality in the impugned
orders dated 19.08.2017 and 19.02.2018 which were passed after
proper appreciation of the material on record and do not call any
interference from this court. The present petition is devoid of any
merit and hence dismissed along with pending applications, if any.
DR. SUDHIR KUMAR JAIN (JUDGE) JULY 31, 2024 N/AK/ABK
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