Sh. Inder Pal Khanna vs Commander Bhupidner Singh Rekhi (Rtd.)

Shiv Narayan Dhingra, J.—By this Revision Petition, the petitioner has challenged the order of Additional Rent Controller dated 7th January, 2008 whereby an application for leave to contest filed by petitioner was dismissed and a decree for possession of the tenanted premises was passed.

A petition u/s 14(1)(e) read with Section 25(B) of DRC Act was filed by the respondent against the petitioner and his brother, Rajkumar Khanna for eviction from property No. C-16, First Floor, Nizamuddin, East Delhi. The property was initially rented out to Mr. Dwarka Das Khanna, father of the petitioner for residential purpose and after his death, petitioner along with his brother, Rajkumar Khanna were living in the property. The landlord had in detail given his bonafide necessity. Notice of the eviction petition was sent to the petitioner who filed his application for leave to defend on 26th November, 2005.

The Trial Court found from the record that petitioner was served on 23rd September, 2005 through his brother, Rajkumar Khanna, i.e., respondent No. 2. The application for leave to defend was filed much beyond the period prescribed under the law. The present petitioner took the plea that he had gone to USA on 26.7.2005 and had returned to India on 11.12.2005. Immediately on his return to India, he had come to know about the demise of his close friend Mannu Bhai Patel so he went to Gurgaon and resided there. He returned to Delhi on 17.11.2005 and was informed about this petition by his brother, Sh. Rajkumar Khanna on 18.11.2005. He was not served with the summons personally. He, however, contacted his lawyer and filed an application for leave to contest within the limitation from the date of his knowledge.

The respondent No. 2, brother of the petitioner was served personally on 23.9.2005 through process server. Respondent No. 2 had also filed an application for leave to defend on 24.10.2005 much beyond the period provided under the Act. Since respondent No. 2 has not challenged the order of ARC, the facts relating to him are not relevant except that the Trial Court had come to conclusion that respondent No. 2 was served personally through process server on 23.9.2005.

The trial Court came to conclusion that petitioner (respondent No. 1 below) was served through respondent No. 2 on 23.9.2005. This was a valid service of summons on respondent No. 1. He was supposed to file an application for leave to defend within 15 days of service of summons. The application was filed much beyond the stipulated period. The provisions of Limitation Act were not applicable to Delhi Rent Control Act therefore there was no question of condonation of delay in filing the application and rejected the application for contest to leave and passed a decree of eviction.

In the revision, the petitioner had assailed the order of the Trial Court on the ground that service on respondent No. 1 was required to be done individually and separately in terms of Section 25(B) of Delhi Rent Control Act and service through brother was not a valid service. The other point raised is that service u/s 25(B) of Delhi Rent Control Act was required to be done through ordinary process as well as through registered post and service of summons merely through ordinary process was not a complete service. The third ground taken is that the landlord had failed to implead remaining LRs of Dwarka Das Khanna, therefore, the eviction petition was not maintainable and this vitiated the entire proceedings.

It is undisputed fact that the petitioner is an LR of Dwarka Das Khanna, the original tenant. It is settled law that on death of the tenant, the tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Once the tenancy is a joint tenancy, notice to one of the joint tenant is sufficient to terminate the tenancy and the suit cannot be held to be bad for non joinder of the other joint tenants or all the legal heirs of the deceased tenant. This issue was settled by Supreme Court in Kanji Manji Vs. The Trustees of The Port of Bombay, , wherein the Supreme Court observed that where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally is therefore not tenable. The petitioner was not a tenant in common. He had inherited a joint tenancy along with his brother and other legal heirs.

This Court in 1990 (3) Dl 163 Mohd. Usman v. Surayya Begum has observed as under:

In the light of the above observations of the Supreme Court there can be no doubt that even if one of the legal heirs is not a party to proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy.

Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises. In the present case, since only two brothers were in possession of the premises, his impleading only two brothers as defendants was good enough and receipt of personal summons by one of the brother, who was joint tenant was valid service of summons on both the joint tenants in the eyes of law. Service of one of the joint tenant has to be considered service on the other joint tenant because in joint tenancy, the tenancy remains one. It is not separate tenancy and right of each of the joint tenants is in whole of the premises.

The plea that the summons are required to be served by both the modes, i.e., ordinary as well as registered is a baseless plea. The purpose of Section 25(B)(3)(a) of sending summons through ordinary process as well as through registered post is to ensure that the service is effected positively on the tenant. Section 25(B)(3)(a) specifically provides that the summons can be served either on the tenant or on the agent empowered to accept the service at the place where the tenant or its agent voluntarily resides. Where the tenancy is a joint tenancy each joint tenant is an agent of the other. Service through ordinary summons of the Court on one of the joint tenant is good service on the other. It is a baseless plea that unless service is effected through ordinary process as well as through registered post, the service is not complete. Service by one of the modes whether through ordinary process or through registered process is sufficient to meet the requirement of Section 25(B). This is clear from Section 25(B)(3) Sub-section (b) where it is provided even refusal to take delivery of the registered articles shall be considered as a valid service. It is not provided that this refusal must be coupled with service through ordinary process or there should be a refusal in the ordinary process also. Section 25(B)(4) makes it further clear that the service may be effected either by the ordinary way or by registered post and this will be a valid service. Even if the summons by registered post have not been sent and the service is effected through ordinary process, this will be a valid service and it cannot be said that the service is not a valid service.

I find no merits in this petition. The petition is hereby dismissed.