Matadeen vs Ashok Kumar, Morar

K.K. Varma, J.—This is a tenant''s revision petition u/s 23-E of the M.P. Accommodation Control Act, 1961 (heareinafter referred to as the "Act'') or the Principal Act from the order dated 28-1-84 of the Rent Controlling Authority, Gwalior, (hereinafter referred to as the R. C. A.) rejecting his prayer for being furnished with a copy of the landlord''s application for eviction u/s 23-A.

The learned R. C. A''s order runs as follows:--

I have heard the Learned Counsel for both the parties.

Now, the M.P. Accommodation Control Amendment Act, 1983 (No. 27 of 1983) hereinafter referred to as the amending Act--has made important changes in the Principal Act (No. 41 of 1961).

The long title introduced by Sec. 2 of the amended Act enumerates expeditious trial of eviction cases on the ground of "bona fide requirements of landlord" as one of the objects of the act.

Sec. 3 of the amending Act has the effect describing the pre-existing Schedule of the Principal Act as first Schedule.

Sec. 4 of the amending Act deletes clauses (c) and (f) of sub-section (1), and sub sections (4), (5), (6) of Section 12 of the Principal Act. The result of this far-reaching amendment was that "the eviction litigation revolving around the grounds of bona fide requirement of laadlords was taken away from Civil Courts,

Sec. 5 of the amending Act which provides for substitution of subsections (1) (2) and (6) of section 13 is not material for the purpose of this revision.

Section 6 of the amending Act deleted sec. 17 of the principal Act.

Sec. 7 of the amending Act deleted section 20 A and 20-AA of the Principal Act.

Sec. 8 of the amending Act inserted a new Chapter after section 23 of the Principal Act, The new Chapter has the heading, Chapter III A........ eviction of tenants on ground of bona fide requirements"

Sec 23-A provides that a landlord may submit an application for eviction of a tenant from an accommodation, let for residential or non-residential purpose, to the R. C. A. The application is required to be signed and verified in a manner provided in rules 14 and 15 of order VI of the C. P. C.

Sec. 23-B (1) directs that the R. C. A. shall issue to the tenant a summons, in relation to the landlord''s application, in the form specified in the Second Schedule. Incidentally, the form of-summons specified in the said schedule shows, among other things that the tenant is informed that the applicant has filed an application for his eviction. The form is intended to draw the attention of the tenant that a copy of the application is being annexed with the summons,

Sub-section (2) of section 23-B makes applicable the provisions of Order V of the CPC to issue of service of summons to a tenant.

Sec. 23-C (1) says that the tenant on whom the summons is served in the form specified in Second Schedule shall not be permitted to contest the prayer for eviction unless he files within fifteen days from the day of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the R. C. A. in the manner provided in sub-section (2) of section 23-C, which directs the R. C. A., shall within one month of the date of receipt of the application given to the tenant, if necessary, the required leave, if his application under sub-section (1) of Section 23-C discloses such facts as would disentitle the landlord from obtaining an order of eviction on the ground specified in section 23-A,

Now sub-section (1) of section 23-C stipulates that in default of the tenants appearance in pursuance of the summons or in default of his obtaining such leave (to contest the landlord''s application for eviction) or if such leave is refused, the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and then the R. C, A. shall in such a case pass an order of eviction of the tenant from the accommodation in question.

It is, therefore, evident that the tenant has a very valuable right to make an application to the R. C. A, to obtain leave to contest the landlord''s prayer for eviction. In fact, the tenant is without any defence and is left with no remedy against eviction if he omits to apply for or he is refused leave by the R.C. A, to contest the landlord''s application for eviction. Thus, the requirements of law, viz, signing and the verification of the landlord''s application in a manner provided in rules 14 and 15 of Order VI of the C, P. C, issuance of a summons in the form specified in the Second Schedule along with a copy of the landlord''s application and service of the summons along with such copy of the application on the tenants in accordance with the provisions of Order VI, and of giving to the tenant proper-opportunity and sufficient time for applying to the R. C. A. for leave to contest the landlord''s application are the safeguards assured by the legislature in order to strike a balance between expeditious and summary disposal of the landlord''s application for eviction, and equally important consideration, of affording a reasonable opportunity to the tenant to obtain leave to contest, and on grant of leave to contest the landlord''s application for eviction. As a matter of fact there is a proviso to sub-section (1) of section 23-C of the Act to the effect that the R. C. A. may, for sufficient cause shown by the tenant, excuse the delay of a tenant in entering appearance or in applying for leave to defend the application for eviction, and for setting aside an ''ex-parte'' order It is, therefore, evident that the legislature made it clear that even a tenant who has been earlier in default in the matter of entering appearance or applying for leave to contest landlord''s application within fifteen days from the date of service of the summons on him, has a right, on showing sufficient cause to the R. C. A., to be placed in the position, obtaining before the applicability of the consequences of defaults mentioned in sub-section (1) of Section 23-C.

With this statement of the law I now propose to come to the facts of the case The following material circumstances of the case constitute a matter of record.

On 9-1-84 the R.C. A. signed the summons (prepared in duplicate). At the foot of the Original summons there is an endorsement over a signature, presumably that of some clerk of the R. C. A. The petitioner Matadin''s signature in Hindi with the date 11-1-84, is on the back of the original summons, with no recital above the signature. Below the signature is the endorsement dated 16-1-84 made by the serving officer, viz.,

There is on record the tenant''s application (typed out on 20-1-84) stating that he did not receive copy of the (landlord''s) application with the summons. He prayed for a copy of the landlord''s application. No copy of the tenant''s application was served on the landlord. The learned R.C. A. endorsed the application over his signature dated 23-1-84 thus--

On 28-1-84, the date of hearing in the proceeding, petitioner Mata-din filed his own affidavit in support of the aforesaid application without serving a copy on the landlord.

The learned R. C. A. did not give any opportunity to petitioner Matadin to give evidence in support of his stand that no copy of the landlord''s application had been delivered to him with the duplicate copy of the summons. He did not give reasons for not giving such an opportunity to petitioner Mata-did. The order sheet dated 28-1-84 does not mention that Matadin''s counsel was even heard. The learned R. C. A.''s method of considering the point in issue before him violated the well-established rules of natural justice. This error in procedure constitutes an irregularity in the exercise of his jurisdiction.

On top of it, he disposed of the matter by remarking without specifying any particular material (appearing on the original summons) on which he was going to rest his finding of delivery of the application to Matadin.

I have already pointed out above at paragraph 19 that there is no endorsement above Matadin''s signature on the back of the original summons. Hence, there is absence of any written acknowledgement of Matadin about receipt of a copy of any application with the summons,

The serving officer''s belated return (dated 16-1-84) of service of summons on the back of the summons is not a statement that he had delivered a copy of any application to Matadin.

The endorsement at the foot of the original summons: does not relate to or prove delivery of a copy of the landlord''s application to Matadin on 11-1-84.

In short, the learned R. C, A. also misread and failed to grasp the true import of the endorsements on the original summons and omitted to consider petitioner Matadin''s application and affidavit--a proper consideration would be reflected in discussion and recording of reasons for not relying on the affidavit--and then arrived at a finding of fact not at all warranted by the material on the back of the original summons, Thus, he did not consider all the relevant material on record, and failed to apply his mind to the only material he had chosen to consider.

There is another angle--a legal one--to the case. Sub-section (2) of section 23-B of the Act makes the provisions of Order V of the CPC applicable to issue and service of summons to a tenant u/s 23-B (1). Order V, Rule 2 says in effect that every summons (sent out for service) shall be accompanied by a copy of the plaint. Order V, Rule 10, says that service of summons shall be made by delivering or tendering a copy thereof signed by the Judge. Thus, the copy of the summons so delivered to the defendant has to be with a copy of the plaint, which is required by Order V, rule 2 to be annexed with the summons.

Order, V, Rule 12 says that wherever it is practicable service of summons (with a copy of the plaint) shall be made on the defendant in person. Order V, rule 16 says that when the serving officer delivers or lenders a copy of the summons with a copy of the plaint to the defendant or the agent or other person on his behalf, he (the serving officer) shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons, Thus, in the case before us the serving officer''s obtaining only Matadin''s signature on the back of the original summons without getting Matadin''s acknowledgement of service endorsed above his signature was not a full compliance of the requirement of Order V, rule 16.

Order V, rule 18 requires the serving officer, who has served a summons under Order V, rule 16, to submit a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessed the delivery or tender of the summons. In the instant case the return of the serving officer on the back of the original summons does not mention the time and manner of service of summons. Thus, the return of the serving officer was also defective.

Order V, rule 19 requires a serving officer to vouch for his return by an affidavit and if it has not been so done the Court is bound to examine the serving officer on oath touching the service of summons. The return on record was not verified by an affidavit of the serving officer and the learned R. C. A. omitted to examine the serving officer on oath touching his proceeding. Thus, the serving officer and the learned R. C. A. did not comply with the aforementioned mandatory provisions of Order V, rule 19.

It is, therefore, established that service of summons was effected without fully complying with Order V, rules 16 and 18 and it was not vouched for by the serving officer on oath, but it was used by the learned R. C. A. without examining the serving officer on oath, as required by Order V, rule 19. Thus, the service of summons on petitioner Matadin on 11-1-84 was not in accordance with law. In face of such a defective service Matadin could not be said to have omitted to apply for leave to contest the landlord''s application within 15 days of service of summons on him, and no presumption u/s 23-C (1) could have been lawfully drawn against him.

Besides, the learned R. C. A., seem to have acted without appreciating the legislature''s scheme of affording safeguards to and its underlying solicitude for, a tenant, which has been discussed and summed up by me at paragraph 17 above.

The learned R. C. A.''s order is therefore clearly interferable u/s 23-E of the Act in view of what I have said at paragraphs 22 to 33 above.

I allow the revision petition and set aside the learned R. C. A.''s order dated 28-1-84 (reproduced at paragraph 2 of my order).

I direct that the learned R. C. A. shall cause a copy of the non-petitioner''s application u/s 23-A of the Act to be delivered to petitioner Matadin or his counsel before him (the R. C. A.) on 2-8-1984. The petitioner Mata-din''s right u/s 23-C (I) of the Act to apply for leave to contest the landlord''s application shall commence and will be exercisable within 15 days or within further such time as may be given to him by the learned R. C. A. under the proviso to sub-section (1) of section 23-C of the Act. The parties shall therefore appear before the learned R. C. A. on 2-8-84.

There shall be no orders as to costs of the revisions, in the particular circumstances of the case. Counsel''s fees Rs. 50/- .