S. Ravindra Bhat, J. This judgment is upon a reference of two questions by a learned single judge of this court, in her order dated 12.05.2015, in the course of a rent control Revision petition. The reference was necessitated in view of conflict of opinions discerned in judgments of this court (all delivered by learned single judges). The questions referred are :
"1. Whether the tenant is required to be served by both the modes as prescribed under Section 25B DRC Act or even service by one mode is sufficient service as per the requirement of the provision ?
2. In case the tenant is served by both the modes whether the period of 15 days for filing the leave to defend has to be counted from the first service or the second service ?"
2. The facts necessary to answer the reference made to this Division bench are that the petitioner applied for "leave to defend" to the Additional Rent Controller (hereafter "ARC"), which was dismissed as barred by limitation on 14.01.2013. His review petition was dismissed by an order dated 20.05.2013. The ARC found that the notice of the eviction petition was served by ordinary process on 28.11.2012 and by registered post on 8.12.2012 on the petitioner. He applied for leave to defend on 17.12.2012.
3. For a better appreciation of the controversy, it would be necessary to - at this stage-notice the relevant provision of the Act. Section 25B, in this regard, reads as follows :
"25B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -
(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section.
(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.
(3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgement 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.
(b) When an 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.
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and 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 be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid."
4. The respondent, landlord relied on Kamal Bhandari v. Brigadier Shamsher Singh Malhotra 1981 (20) DLT 380, where the court held that Section 25B (3) prescribes an additional mode of service, apart from issuance of summons (under Section 25B (2)). The court also ruled that if a tenant is duly served by either mode the period of limitation to apply for leave to defend starts from the date of service; and that if the tenant is served by both the modes, then, the period of limitation starts from the date of first service. It was held that the Statute, prescribing service of summons in two ways, does not efface the earlier service of notice. In other words if the second service is effected (i.e. through registered post) that would not wipe out the first service. Shyam Sunder Wadhawan v. Shri Vivek Arya (2014) 214 DLT 61 adopted the same view.
5. The departure in the reasoning in Kamal Bhandari came in Frank Anthony Public School v. Amar Kaur 1984 (6) DRJ 47. The court reasoned as follows :
"(15) Firstly both modes of service, namely, ordinary service and service by registered post are the requirements of the statute. Summons have to be issued to the ten ant in both the modes. He may be served in both modes or in one or none. If he is "duly served whether in the ordinary way or by registered post" the Controller can proceed to hear the leave application made to him within fifteen days from the service of summons. But if he is served in both ways the question arises : To which service-the first or the second-do we give primacy ? Remember the second service has also the sanction of the stature. The first service and the second service stand on an equal footing. They are of equal efficacy and equal weight. So why count fifteen days from the first. Why not from the second. The object of the statute is to issue summons in the two modes giving a direction to the tenant to appear before the Controller to answer the suit, which has been brought against him. The tenant is notified that an action has been instituted against him, and that he is required to answer it at the time and place mentioned in the summons. He is required to apply for leave to appear and contest the claim by making an application to the Controller supported by an affidavit.
(16) The summons are a notice to the tenant that the action against him has been commenced by the landlord and that judgment will be given against him if he fails to apply for leave to contest "within fifteen days of the service hereof". In other words, the tenant is notified that he must apply within fifteen days from the service of summons, the statutory period designated in the summons itself, and make answer to the landlord''s claim by applying for leave. So there is absolutely no difference between service in the ordinary manner and service by registered post. Both have the same message for the tenant. But dates are different. If he gets these summons on different dates will he not be entitled to say, "I have come within fifteen days for leave to appear from the date of the second summons which I got on 12-5-1982" ? This is what happened in this case. The object of the second service is the same as the first service. There is no difference, qualitatively at least. So why not count fifteen days from the date of the second service. In Kamal Bhandari the learned Judge said that it cannot be done from the second service because the second service does not "wipe out" the first service. This is true. No one says that the first service is wiped out. At the same time the statute does not say that you disregard the second service. As I have said, both modes of service have been placed on par by the statute.
(17) The Controller is required to issue summons by registered post "in addition to and simultaneously with" the ordinary summons. If both modes of service have got equal efficacy there is no reason to disregard the second service on the tenant. We cannot ignore the second summons. We cannot treat second service as of no importance. Summons are after all a call of authority. It is a document issued by the office of a Court of Justice or a Tribunal calling upon the person to whom it is directed to attend before the Judge or the Tribunal for a certain purpose. In view of the statutory sanction to the two modes of service the tenant is perfectly within his rights to say that he counted fifteen days from the second summons which he got on 12-5-1982.
(18) It is not a question of wiping out any service, as was the view in Kamal Bhandari''s case. The fallacy in that reasoning, if I may say so with great respect, is that it overlooks the effect and the efficacy of the second summons. It just disregards it, even though the statutory sanction is attached to it. The legislature commands the Controller : "you shall issue summons by registered post in addition to and simultaneously with the summons in the ordinary form". The tenant can well say if he gets the two summons on different days : "I will court fifteen days from the later summons which I received on 12-5-1982".
(19) We are not wiping out the first service. Nor the second. What Kamal Bhandari has done is that it has wiped out the effect of the second service. It has given an over riding importance to the first. It belittles the importance of the second. In fact nothing has to be obliterated, nothing to be erased, nothing to effaced. The first service does not blot out the second. Nor the second will have the effect of cancelling the first. The legislature for good reasons commands that service be effected in both the modes. So both modes must be considered as of equal importance. One is not superior to the other. The second summons have the same potency, the same power, the same quality as the first.
(20) Secondly, I think there is no reason to hold that the period of fifteen days will commence from the date on which the tenant is first served. He gets summons twice over in the same statutory form. When he gets the second summons the Controller does not issue any warning : "Mr. tenant, disregard the second summons if you ever get it. You must go by the first service of summons". No signal. No signpost. If there is no warning signal to him to disregard the second summons he is perfectly entitled to think that both summons have equal value and equal weight because they are after all issued by the same authority and under the same statute. There is nothing to indicate in the second summons that time will be counted from the first service or that the second service shall be disregarded.
(21) Thirdly - And it is a corollary of the second-it will be unjust to the tenant if fifteen days'' time is counted from the first service. Not only will it be against the law, it will also be against the principles of justice, equity and fair play if the Controller tells the tenant, "I will count fifteen days from the first service. You were misled by my second summons. You ought to have disregarded them altogether". Law then becomes not an instrument of justice but a trap for the unwary. Many will be ensnared. A salutary provision will prove the undoing of many simple ''tenants uninitiated into the complexities of law. This case illustrates it.
6. The above ruling was followed in Durga Devi v. S. Kumar 46 (1992) DLT 356. The court stated as follows :
"Two modes of services are provided under Section 25(B) of the Act and if the respondent is served by both the modes, limitation would be calculated from the latter dated on which service was effected."
7. The learned judge in Shyam Sundar Wadhawan had noticed a previous single judge decision in Jor Singh v. Sanjeev Sharma 205 (2013) DLT 117. The court had, in the said decision not noticed either Kamal Bhandari or Frank Anthony. It held as follows :
"26. While on the registered post on 10th April, 2012, the report of the postman is that at the site of the petitioner "information given". But on 11th April, 2012 the report of refusal is mentioned. Thus, doubts can be expressed on the registered post as in case the information was given on 10th April, 2012, there was no occasion to visit again on 11th April, 2012 and give report of refusal.
27. There is a specific denial of the petitioner about any mode of service effected to him.
28. One of the essential requirements of the special process of service provided under Section 25 B of the Act is that the summons must be served must be addressed to tenant or his duly authorised agent empowered to accept service. The said requirement is a precondition for a valid service which is evident from the wordings of the Section 25B (3)(a) wherein it is stated "addressed to the tenant or his agent empowered to accept the service". Thus, the service which shall be done to a tenant should address to the tenant or the one which is done to the agent must be addressed to the agent who is empowered to accept the service. The provisions of Section 25B (3) (a) are to be strictly adhered to as the service of the tenant sets in to motion a limitation period which is itself very short and the expiration of which results in the serious consequences of deprivation of his right to contest the proceedings which may ultimate result in to eviction. Therefore, no departure is permissible under the provisions of Section 25B and the service has to be conducted in accordance with the mode and procedure prescribed therein. The learned Rent Controller has to thus ensure prior to making any order on the expiration of the limitation period that the service is effected upon the tenant or his agent in the prescribed manner else he has to order the issuance of the fresh summons in the matter. In the present case, the respondent is not able to satisfy this Court about the valid service of summons upon the petitioner/tenant.
29. If the provisions of Section 25B (3) are applied to the instant case, it can be seen that the registered post service was doubtful and not specific. Even if the conduct of the respondent in the present case is examined it is apparent that the respondent was trying to get the possession of tenanted shop by any means and without due process of law which are not permitted by law. The learned Trial Court has totally failed to apply its mind and notice the conduct of the respondent which is of dubious nature. The learned Rent Controller believed the doubtful report of the process server which does not clearly mentions the identity of the person who refused to accept summons. That is not the scheme of the provision of Section 25 of the Act.
30. I find that the service in the instant case was not properly effected in accordance with law. Thus, the said service upon the unidentified person cannot be said to be a regular one and was not effected in accordance with the provisions of Section 25B of the Act."
The last decision, which appears to be on the same lines as Frank Anthony is Dharampal v. Meena Sharma (RCR 61/2010, decided on 28-02-2012). The court had then ruled as follows :
"7 It is thus clear that the service can be effected upon the tenant either by ordinary way or by registered post ; either of two modes of service would be a complete service and whereupon the tenant would then be required to file his application for leave to defend within the stipulated period of 15 days.
8. It is not in dispute that in the instant case service has not been effected by either of the two modes as prescribed in IIIrd Schedule of the DRCA the summons could not be served either by the ordinary process or by registered A.D..."
8. Counsel for the petitioner/tenant urges that the line of reasoning in Frank Anthony, Dharampal and Jor Singh is in consonance with legislative intent, because it gives effect to the letter and spirit of the law. If, for instance, the tenant were to be served under both modes, provided in Section 25B (3) - which are mandatory, the last service ought to be considered for the purposes of reckoning limitation. This will fulfil the objective of ensuring a fair defense and also protect the interests of the landlord, because in any event the tenant would have to apply for leave to defend or else, face eviction. It was contended that accepting the interpretation in Frank Anthony would accord equal weightage to both modes of service, rather than one mode, as in Kamal Bhandari (supra). The correctness of this argument was contested by counsel for the landlord, who pointed out that Section 25B is a special code, both with respect to procedure and mode of service; it has to be strictly construed. The object of enjoining both modes of service of notice (and no other) is to ensure that the adjudication on merits of any petition are not delayed. The second object of ordering two modes is to ensure that the rent controller is not compelled to await the outcome of service through one mode; if one fails, the other may succeed. If the tenant is served through both modes, she or he has actual knowledge; it would be then illogical that she or he should await receipt of the other mode of service of notice.
Analysis and Findings
9. The special nature of Section 25B was noticed by the Supreme Court in the judgment reported as Prithpal Singh v. Satpal Singh 2010 (2) SCC 15. The Supreme Court had to deal with a contention that provisions of the Delhi Rent Control Rules, which said that provisions of the Civil Procedure Code should generally be followed, do not apply to summary proceedings. The court held as follows :
"22. Apart from that, as we have noted herein earlier, Section 25B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25B of the Act. Therefore, after insertion of Section 25B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25B and question of relying on Rule 23 of the Code, which also does not give full right to apply the provisions of the Code, could be applied.
23. That apart, Rule 23 does not specifically confer any power on the Controller to follow the provisions of the Code in special classes of landlords. It is a general rule, by which the Controller in deciding any question relating to procedure not specifically provided by the Act and these rules shall, as far as possible, be guided by the provisions contained in the Code.
24. In view of our discussions made herein above that Section 25B has been inserted by the Legislature for eviction of a tenant of a certain classes of landlords, in which the entire procedure has been given, it is difficult for us to hold that Rule 23 of the Rules can be applied in the present case in view of the specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule 23 has no manner of application.
25. That being the position, if Rule 23 cannot be applied in the present case because of applicability of Section 25B, which is a special code and specific procedure for eviction of a tenant by a landlord on the ground of bona fide requirement, we cannot agree with the courts below that in view of Rule 23 of the Rules, the provisions of the Code can be applied in the present case and, therefore, we are of the view that the High Court had acted illegally and with material irregularity in the exercise of its jurisdiction in setting aside the order of eviction and in allowing the affidavit filed by the tenant for the purpose of defending the proceedings for eviction."
10. That the enactment prescribes two concurrent modes, is indisputable. The question is what is the effect, if both modes of service are to be undertaken simultaneously, rather than sequentially ? Though there is a seeming legislative silence in that regard, in the opinion of this court, the effect and consequence is clear. The object of providing a special provision for service - in this part of the Act, is to ensure that there is speedy service of summons to the tenant; given that the procedure is special, aimed at quick disposal of the class of disputes envisioned in the chapter. The legislature thought it appropriate to ensure that two modes were simultaneously resorted to, having regard to past attempts (at service, where if the first notice of summons was not served in the ordinary way, the court would then issue summons under registered post) which inevitably lengthened proceedings due to the delay entailed. In the other regime, the question of one mode of service acquiring primacy over the other did not arise; if summons were served in the ordinary manner in the first instance that was deemed sufficient. However, having regard to past experience whereby if the first mode was unsuccessful, the second mode - through registered post, was resorted to, invariably entailing delay, both modes were insisted upon. This, in the court''s opinion did not alter the fact that both modes were "normal" but provided for so as to ensure that if through one, service was not effected, at least it was through the other. Therefore, both modes of service are effective ; if service is completed through both, the question of one acquiring primacy over the other does not arise. The legislative mandate is unequivocal :
"The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgement due.."
Furthermore, the service of summons through publication is not mandatory, but depend upon the Controller''s opinion that "if the circumstances of the case so require.." These circumstances clearly show that the first two modes are compulsory and simultaneous. The first question therefore, has to be answered in the affirmative; both modes of service are to be resorted to simultaneously; one cannot be preferred over the other. Nor can one be made to await the other mode. Both have to be ordered together. At the same time, it does not follow that when one mode is successful and the other not so successful, service is not complete. In other words, the obligation to issue summons through two modes is mandated; however if one is completed and the other not completed, service is deemed completed in regard to the one where summons is served.
11. The next issue is what is the effective date from which the 15 day time limit starts, for a tenant seeking leave to defend the proceedings. If the true object of service of summons is that the party receiving it is informed about the institution of the case and also required to take steps to defend himself or herself, logically, time would start whenever summons are served in accordance with law. It is quite possible - even within contemplation of the Parliament - that service was to be through both modes. However, the insistence that both should be together is only to further the intent of speedy resolution of the class of cases which is provided for. It does not mean that a tenant, in receipt of summons through one mode - say registered post, has the option of waiting to see when the ordinary process service is effected. The object of informing the respondent/tenant is to ensure that he or she applies within the time prescribed the moment the first service is completed. It does not depend on if, and when the second mode is completed. Since the intention of providing for service of summons is to ensure that the party concerned is notified of the pendency of proceeding, the object is fulfilled the moment service is completed. This is not to be confused with the controller''s obligation to direct summons through both modes. The object of providing for two modes is to speed up the process and also ensure that if one mode is unsuccessful the other mode is resorted to at the same time. Therefore, the answer to the second question is that time to apply for leave to defend begins whenever the tenant is first served the notice (regardless of the mode : i.e. ordinary or registered).
12. In view of the above discussion, the reference is answered in the following terms :
1. 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.
2. In case the tenant is served by both the modes, 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.
13. In view of the opinion expressed upon the reference, the revisional proceedings shall be placed before the judge dealing with rent matters according to roster allocation, subject to orders of the Chief Justice.
