When Tenant Is Absent From Tenanted Premises, Summons Must Be Served At Alternative Address: Delhi High Court

The Delhi High Court has said that where the tenant is undeniably absent from the address of tenanted premises, temporarily or permanently, court should make every sincere endeavour to serve summons upon the tenant at an alternate address.

Justice Dharmesh Sharma observed that summoning by way of publication should only be resorted to when the circumstances are such that it leaves no scope for any other course of action.

“Indeed, Chapter IIIA of the DRC Act has an overriding effect and provides for a special procedure for disposal of application for eviction on the ground of bonafide requirement of tenancy accommodation by the landlord. It is but also the fundamental mandate of law that the summons of the petition must be shown to have been duly served upon the opposite party/tenant so as to enable him to file an application for leave to defend within the stipulated time,” the court said.

Justice Sharma made the observations while dealing with a revision petition filed by a tenant against an order of passed by the Additional Rent Controller in favour of the landlord in an eviction petition filed by the latter.

The tenant had taken a private shop on rent in city's Chhota Bazar, Kashmere Gate, for carrying out business activities. The shop was closed for some time due to the old age of the tenant. However, rent was being paid on a monthly basis.

It was the tenant's case that the landlord pressurized them to pay the rent in advance, which was duly done, but no receipt of payment of rent was issued to them.

Vide the impugned order, the Additional Rent Controller directed the tenant to vacate the shop but held that the landlord will not be entitled to recovery of possession of the tenanted premises before expiration of six months.

The tenant challenged the order on the ground that no summons of the eviction petition was served in the manner prescribed under Section 25B(4) of the Delhi Rent Control Act, and that the landlord deliberately did not provide the alternative address, despite being aware of their place of residence.

Setting aside the impugned order, the court said that that the summons were shown to have been served upon the tenant by affixation of notice at the tenanted premises, which was also published in the local newspaper.

However, it noted that the alternate address of the tenant was not indicated and the landlord did not deny that she was aware of the residential address of the tenant.

“It is apparent that not only was the requisite legal procedure not followed to effect service of summons but the learned ARC failed to exercise due diligence in the matter,” the court said.

It added that the Additional Rent Controller accepted the affixation report without examining the process server, and it was neither signed by any witness nor there were any photographs attached.

“There was effected no service of summons by RPAD. It is said “justice hurried, is justice buried” and suffice to say that is what happened in the instant matter,” the court said.

It also observed that since the tenanted premises was found to be shut or closed, it was the duty of the Additional Rent Controller to call upon the landlord to provide alternate address of the tenant on an affidavit.

“Such caution was thrown to the wind. It is evident that the respondent deliberately concealed the details of the residential address of the petitioners and no efforts were made to serve summons at such address,” the court said.

Justice Sharma remanded the matter back to the Trial Court for further proceedings as per law and directed the landlord to restore the possession of the tenanted premises to the tenant.

Title: AMRIT LAL WADHERA & ANR. v. SAROJ SUNEJA

Citation: 2023 LiveLaw (Del) 1317

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