GULSHAN SINGH v. SUKHJEET SINGH — 1992 DIGILAW 25 (DEL)

S. C. Jain, J. ( 1 ) THE facts giving rise to this revision petition are that the landlord Sukhjeet Singh, respondent herein, had filed an eviction petition against the tenant, petitioner herein, under section 14 (l) (e) read with Section 25b of the Delhi Rent Control Act. Summons in the prescirbed form in Third Schedule of the delhi Rent Control Act were ordered to be issued to the petitioner tenants in the ordinary way as well as by registered post. The Addl. Rent Controller found that petitioner No. 2 Pawan Deep Singh was served on 20. 12. 99, whereas, petitioner No. 3 to 5 were served in December, 1988 and petitioner No. 1 was served through his mother on 30. 12. 1988. As the application seeking leave to defend was not filed within fifteen days from the date of service, so the Addl Rent Controller believing the version of the respondent landlord in the eviction petition passed an eviction order against the petitioner under Section 14 (l) (e) of the Delhi Rent Control Act vide order dated 24. 1. 1991. However, six months time was granted to vacate the premises in suit. ( 2 ) AGGRIEVED, this revision petition has been filed by the tenants. The main grievance of the petitioners are that the Addl. Rent Controller has not correctly penused the order sheets and wrongly held that the petitioners were duly served as required under Section 25b (3) of the Delhi Rent Control Act. According to the counsel for the petitioners, as per the order dated 26. 4. 89, the Addl. Rent Controller observed that the petitioners 2 to 4 had been served and petitioner no. l had not been served and fresh summons were ordered to be issued for service on petitioner No,. I for 10. 8. 89. Petitioner No. l was not served personally either through the process server or by registered post. Though petitioner No. 1 was not served personally, yet the petitioners filed an application under Section 25b (4) on 25. 5. 89, seeking leave to defend but that application was dismissed as barred by time. According to the counsel, the Addl. Rent. Controller Controller failed to apply its mind and did not appreciate that the petitioner No. 1 was never served in accordance with the provisions of Section 25b (3) of the Delhi Rent Control Act. Service of summons on. 5. 89, seeking leave to defend but that application was dismissed as barred by time. According to the counsel, the Addl. Rent. Controller Controller failed to apply its mind and did not appreciate that the petitioner No. 1 was never served in accordance with the provisions of Section 25b (3) of the Delhi Rent Control Act. Service of summons on. the mother cannot be said to be proper service within the meaning of Section 25b of the Act. ( 3 ) THE counsel for respondent, however, countered the argument of the counsel for the petitioner and submitted that the notices sent in the ordinary way were received by the mother respondent No. 3 for self and for others on 9. 10. 88. This is sufficient service on the petitioners herein who were joint tenants. Leave application was not filed within fifteen days from 9. 10. 1988 and so the Addl. Rent Controller correctly rejected the application seeking leave to defend and the order of eviction is justified and legal. ( 4 ) SECTION 25b (3) makes it clear that the Controller is duty bound to issue summons for service both in the ordinary way as also by registered AD post at the place where the tenant actually resides or carries on business or personally work for gain. The requirement of law is that summons must be served on the tenant personally or his agent empowered to accept service and not on any other family member or even adult male member of the family. In the face of clear procedure for service of summons set out in 25b (3) of the Act no other provision of law can be pressed or relied upon. ( 5 ) IN this case, a perusal of the record shows that the Addl. Rent Controller has not applied his mind at the time of recording the order sheet as well as while passing the impugned order. The order sheet maintained by the Addl. Rent Controller shows that for the first time the eviction petition was put up on 2. 6. 1988 before the Addl. Rent Controller and summons were ordered to be issued by both the ways in the form prescribed in the Third Schedule 10. 8. 88. On 10. 8. The order sheet maintained by the Addl. Rent Controller shows that for the first time the eviction petition was put up on 2. 6. 1988 before the Addl. Rent Controller and summons were ordered to be issued by both the ways in the form prescribed in the Third Schedule 10. 8. 88. On 10. 8. 88 service on respondent No. 3 petitioner herein, Smt Devinder Kaur was recorded and other respondents i. e. petitioners herein were recorded as unsered and fresh summons were ordered for 4. 1. 89. On 4. 1. 89, respondent No. 2 petitioner herein was also found to be served on 20. 1. 88 and process sent to respondents/petitioners I and 5 were not received back and fresh summons were ordered to be issued against respondents/petitioners I and 5 for 8. 3. 89. On 8. 3. 89, it was recorded that respondents/petitioners I and 5 were not served and notices were again ordered for their service for 26. 4. 89. On that date, there is mention that respondents / petitioners 2 and 5 were served but respondent No. 1 petitioner herein was not served. It means that upto 26 service on respondent No. I/petitioner was not effected as per the order sheet of the case. There is no mention on the order sheet as to when respondent No. 1 petitioner herein was served in the eviction petition. However, on 9. 5. 89, an application seekin leave to defend was filed by the respondent though their counsel Shri Jati Ram, supported by an affidavit of respondent No. 2 petitioner herein. However, that application was dismessed by the Addl. Rent Controller on 24. 1. 1991 observing that the application for leave to defend has been filed after the expiry of limitation and was not to be considered and in the pabsence of the application seeking leave to defend eviction order was passed against the petitioners herein. ( 6 ) IT is settled principle of law that service of summons issued in the forms mentioned in the Third Schedule has to be effected on the tenant personally or through their authorised agent. As per the order sheet of the case, the respondent No. 1 (petitioner No. l herein) was never served personally or through his authorised agent. The Addl. As per the order sheet of the case, the respondent No. 1 (petitioner No. l herein) was never served personally or through his authorised agent. The Addl. Rent Controller assumed the personal service of the respondents/petitioners in view of the act that vakalatnama in favour of Jati Ram Advocate was placed on record on 4. 1. 1989 and from the vakalatnama the Addl. Rent Controller presumed personal service on the respondents, petitioners herein. This is not correct conclusion. Provisions of Section 25b read with Third Schedule are mandatory in nature and each and every should have been served personally or through their authorised agent. Service of summons on the mother of the respondent is not proper service within the meaning of Section 25b. As per the order of the Addl. Rent Controller the respondent No. l, petitioner herein was never served in this case. When he was not served in the case how the application could be dismissed on the ground that it was filed beyond fifteen days from the date of service. Even if it is presumed. that vakalatnama was filed by the tenants collectively in favour of one counsel that does not mean that all the tenants were personally served. The order sheet of the case shows that the petitioner No. l was never served till 26. 7. 89 and that his singing the vakalatnama would not constitutte proper service under the Act. lt has been laid down by this court in the case of 0m Prakash vs Brig Nath Sharma, 1980 Vol 18 Delhi Law Times 313 that "it cannot be emphasised enough that save in circumstances expressly provided in law, service of summons has to be personal. It is common knowledge that the landlord are often tempted to cut short the due process of law by taking service of summons on the tenant and it is not only salutary but indeed necessary for the Rent Controller to probe their record deeply and maticulously to ensure that the summons have been duly served before proceeding further. This is all the more important in proceedings under Section 25b of the Act where a very valuable right of the defence is mercilessly and unalterably taken away on failure to apppear and plead on or before 15 days from the fatefull day of service of summons and the Rent Control Authorities can do precious little to help". This is all the more important in proceedings under Section 25b of the Act where a very valuable right of the defence is mercilessly and unalterably taken away on failure to apppear and plead on or before 15 days from the fatefull day of service of summons and the Rent Control Authorities can do precious little to help". ( 7 ) THE impugned order passed by the Addl Rent Controller is not legal and he has acted beyond its jurisdiction in dismissing the application seeking leave to defend on the ground that it was filed beyond the statutory period of fifteen days. I accept the revision petition, set aside the impugned order dated 24. 1. 1990 and remand the case back to the Addl. Rent Controller concerned with the direction that he should hear the parties counsel on the application seeking leave to defend the eviction petition and to pass an order in accordance with law after taking into consideration the affidavits and material on record. The parties are directed to appear before the Addl. Rent Controller concerned on 24. 1. 1992.