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1990 DIGILAW 237 (PAT)

Md. Shamimuddin v. Hameeda Khatoon

1990-07-19

RAM NANDAN PRASAD

body1990
JUDGMENT Ram Nandan Prasad, J.- The prayer in this application is to set aside the order dated 8.4.1987 passed by Sub-Judge, Gaya, in Title Suit no. 119 or 1983. The petitioner is defendant no. 1 in the suit which is a suit for eviction brought by opposite party. 2. The facts lie in a very short compass. The plaintiff brought the suit for eviction of the petitioner from holding no. 45 (c) (old holding no. 44) situated in Mohalla Nagmatia Road, Gaya, on the ground of personal necessity. He also alleged that the present petitioner (defendant no. 1) had sublet the premises to Mansoor Alam and accordingly the latter was made defendant no. 2 in the suit. It would transpire that Mansoor Alam vacated the house and according to the plaintiff, the petitioner inducted Irshad Khan as a sub-tenant in the house. Accordingly, Irshad Khan was made defendant no. 2. Thereafter notices, were sent by registered post to defendant no. 2 as required under section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. It appears that in spite of the fact that more than one month had elapsed, the service report of the notice, sent by registered post, was not forthcoming. The plaintiff then filed a petition (annexure-A to the counter affidavit) stating therein that more than three months had elapsed after sending notice by registered post and as such the service should be accepted as provided under Order 5, rule 19 of the Code of Civil Procedure. The court below, without giving proper attention to this matter, asked the plaintiff to get substituted service done by publication in the newspaper. Thereupon, after the deposit of the requisite fee notice against defendant no. 2 was sent for publication in a weekly newspaper titled 'Tarakki ke Raste'. It was published in the issue dated 16.3.1987 of this newspaper and this service was accepted by the court as being valid by order dated 8.4.1987. 3. It has been urged here that the court committed an error of law in accepting the substituted service by publication in a weekly newspaper because Rule 20 of Order 5 requires that the publication should be in a daily newspaper. It has been urged that the substituted service by publication in the newspaper was done contrary to the statutory requirement and as such it must be regarded as invalid. It has been urged that the substituted service by publication in the newspaper was done contrary to the statutory requirement and as such it must be regarded as invalid. In reply, the learned counsel for the opposite party has urged that section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act prescribes a special procedure for disposal of cases of eviction on the ground of personal necessity. He has relied on sub-section (3) of section 14 which prescribes that in addition to and simultaneously with issue of summons for service on the tenant, the court shall direct service of summons by registered post with A/D and if the circumstances of the case so require the court may direct the publication of the summons in the official gazette or in the newspaper circulating in the locality, in which the tenant is last known to have resided. The argument is that this special procedure for issue of summons prescribed in sub-section (3) of section 14 does not restrict the publication in a daily newspaper and as such the publication in the weekly newspaper would also be regarded as valid and proper compliance of the statutory provision of section 14 (3) of the B.B.C. Act. Section 14 (3) merely mentions about the publication in a newspaper circulating in the locality, it does not specify whether such newspaper should be a daily, or a weekly, or lay even a monthly. It has been contended on behalf of the petitioner that where the provision of the special statute is silent the provisions the general law would apply and so Order 20, rule 5 will be applicable in such a situation. In my opinion, there is substance in this contention. However, on the facts and circumstances of this case, it was not necessary to effect substituted service by publication in a newspaper. The fact that the notice was duly issued by registered post in accordance with law as requited by sub-section (3) of section 14 of the B.B.C. Act has not been controverted by submission of any affidavit by the petitioner. I do not understand why the court below did not accept service of the notice sent by registered post when the statutory period had expired. The court was in error in this regard. In my opinion, service on defendant no. I do not understand why the court below did not accept service of the notice sent by registered post when the statutory period had expired. The court was in error in this regard. In my opinion, service on defendant no. 2 should be accepted as valid in view of the fact that the notice had been sent by registered post and the statutory period expired. The court below is, therefore, legally entitled to proceed in the suit on the basis that notice has been properly and validly served on opposite party no. 2. 4. For the reasons stated above, I find no ground for interfering with the impugned order. This application is dismissed. 5. The trial court is directed to expedite the disposal of the suit.