Jai Kishan Goswami v. District Judge Mathura — 1992 DIGILAW 743 (ALL)

JUDGMENT S.C. Verma, J. - The present petition is directed against the order dated 17.2.1986 rejecting the application for setting aside ex parte decree dated 27.5.1975 and the order dated 22.1.1987 passed in revision as also ex parte decree dated 27.5.1985. 2. The S.C.C. Suit No. 102 of 1984 was filed in the Court of Judge, Small Causes Court by the respondent No. 3 against the petitioner and the respondent No. 4 who are brother and sister, for arrears of rent and ejectment. 3. The plaintiff alleged that he is the landlord of the premises water-tax number 1174 (old number 1951) whose boundaries are given at the foot of the plaint, and the petitioner Nos. 1 and 2 and the respondent No. 3 are the tenants thereof after the death of their mother who was formerly the tenant. The registered notice dated 26.10.1984 terminating the tenancy was served on the defendant by refusal on 29.10.1984 and the plaintiff claimed rent from 10.12.198(sic) to 29.11.1984 @ Rs. (sic) 24 as also for damages the period for (sic)0.11.1984 to 10.12.1985. The plaintiff further claimed damages @ Rs. 200/- per month from the date of decree upto the date of delivery of possession. 4. The ex parte decree dated 27.5.1985 was passed as the petitioner Nos. 1 and 2 as also respondent No. 3 failed to appear on the date. It was held on the basis of plaint allegations that the plaintiff is landlord and the notice terminating tenancy was served on 29.4.1984 by refusal and thereafter summons sent by registered post, although received by the respondent No. 3 were refused by the petitioner Nos. 1 and 2 and they shall be deemed to be served. The respondents did not appear inspite of service of summons. An ex parte decree was passed decreeing the plaintiff's suit for ejectment and arrears of rent for Rs. 325.20. 5. The petitioners filed application dated 31.7.1985 purported to be under Order 9, Rule 13 of the Code of Civil Procedure for setting aside ex parte decree. In the affidavit filed in support of the application, it was alleged that the summons were never served on them and they never refused to accept any registered letter, the endorsement of refusal has been prepared for the purposes of this case. The petitioners also indicated that there was prayer to furnish personal bond in lieu of the decretal amount. In the affidavit filed in support of the application, it was alleged that the summons were never served on them and they never refused to accept any registered letter, the endorsement of refusal has been prepared for the purposes of this case. The petitioners also indicated that there was prayer to furnish personal bond in lieu of the decretal amount. This application was opposed by the plaintiff. 6. The presumption of the service by registered post was held to be valid. It was further held that all the three registered letters were sent on the same address and there appears to be no reason to take any contrary view when one of the registered letters sent to the sister Smt. Manju Sharma was duly served. It was further held that as the sister was living along with her brother and she was married thereafter, the appears to be no reason to doubt the service of the summons through registered post. As the summons would be deemed to be served, the petitioners would be deemed to have knowledge of the date of ex parte decree dated 27.5.1985 and the application filed on 31.7.1985 to set aside ex parte without application to condone the delay would be treated to be beyond time. 7. It is further held that the application for furnishing security was defective and not maintainable as also the alleged security furnished was not sufficient. The learned Munsif Magistrate rejected the application by order dated 7.2.1986. 8. The revision preferred by the tenants against the order dated 7.2.1986 was also dismissed by order dated 22.1.1987 passed by the District Judge, Mathura. The learned District Judge has given very detailed and cogent reasons for confirming the findings of the trial Court in so far as they relate to the service of the summons on the petitioners. 9. As regards the deficiency and incompetent application under Section 17 of the Provincial Small Causes Court Act, it was held that the deficiency, if any, in the security could be made good later on and for that reason the said application cannot as rejected. Learned Judge was of the view that if it would be held that there was no sufficient cause for the absence, it may not be necessary to give opportunity to make good the deficiency. Learned Judge was of the view that if it would be held that there was no sufficient cause for the absence, it may not be necessary to give opportunity to make good the deficiency. Learned Judge held that initially summons were sent through post which were received back as refused then they were directed to be served by registered post. Summons issued through registered post were held to be duly served, as one of the registered envelopes sent on the same address in favour of Smt. Manju Goswami was received personally by her but the two other registered letters sent on the same address were returned with the endorsement of refusal. The application of setting aside ex parte decree was filed on 31.7.1985. 10. The learned Judge placing reliance on the various decisions in this regard held that the presumption of service is rebuttable and as the summons were duly served on respondent No. 4 the sister of the petitioner and she did not take any steps for getting the ex parte decree set aside, the notice would be deemed to be served on the petitioners as well. The application for setting aside ex parte decree was also filed beyond time and no explanation whatsoever has been given nor any application under Section 5 of the Indian Limitation Act was filed to condone the delay. 11. These findings of fact by the two Courts below in my opinion fully establish that the summons were duly served and the petitioners would be deemed to have knowledge of ex parte decree and the application to set aside ex parte decree was filed beyond limitation and no sufficient cause was shown for the absence on the date ex parte decree was passed. I am not inclined to interfere in exercise of my jurisdiction under Article 226 of the Constitution with the findings on fact which have been recorded after discussing the entire material on record as also various decisions of the High Court and Hon'ble Supreme Court in this regard. 12. Learned counsel for the petitioner emphasised in his submission that the suit itself was not maintainable and, as such, ex parte decree was without jurisdiction. According, to the learned counsel for the petitioner the suit was in respect of open land which was not maintainable and the ex parte decree is liable to fall on this ground alone. 12. Learned counsel for the petitioner emphasised in his submission that the suit itself was not maintainable and, as such, ex parte decree was without jurisdiction. According, to the learned counsel for the petitioner the suit was in respect of open land which was not maintainable and the ex parte decree is liable to fall on this ground alone. It may be stated that on the basis of plaint allegations which remained uncontroverted the trial Court has not committed any error of law in holding that the suit was in respect of building, of which the petitioners were admittedly tenants. In my opinion, this aspect of the matter would not invalidate either the ex parte or the two orders passed by the Courts below rejecting the application to set aside the ex parte order. The plaint allegations indicate that the premises whose water tax number was 1174, as fixed by the Medical Board would be municipal number of the building. The ex parte decree at this stage cannot be treated to be invalid merely on this ground that the tenancy was in respect of open land and no building as such was let out. 13. In my opinion, these grounds cannot be considered at this stage when no revision under Section 25 has been filed and consideration before this Court is confined only to the validity of the impugned orders. However, it is established from the controverted pleadings and material on record that the learned Judge, Small Causes Court has not committed any error of law in passing the ex parte decree for arrears of rent and eviction. Further in my opinion, the Court below have not committed any error of law or jurisdiction in drawing presumption in favour of the plaintiff that the notices with summons were refused by the petitioner and they would be deemed to be duly served. To rebut this presumption the learned Judge has rightly observed that the defendants except for mere denial have not brought on record any material to establish that the endorsement of refusal was not correct or the same was procured for the purpose of the case. As the summons would be deemed to be served on 30.3.1985 on the petitioner they would also be deemed to have knowledge of the ex parte decree on 27.5.1985. As the summons would be deemed to be served on 30.3.1985 on the petitioner they would also be deemed to have knowledge of the ex parte decree on 27.5.1985. The application dated 31.1.1985 for setting aside ex parte decree without the application under Section 5 of the Indian Limitation Act to condone the delay in filing the application and without showing any cause for condonation of delay has also been rightly held to be beyond limitation. The petition has no merit and is accordingly dismissed. There shall be no orders as to costs. 14. The operative portion dismissing the petition was dictated in the open Court and later on the order containing detailed reasons was passed. The petitioner filed an application for grant of reasonable time to vacate the premises. The petitioner prayed for atleast three months' time to vacate the premises. A copy of this application was also served on the learned counsel for the respondents, who made an endorsement that he has no objection provided an undertaking is given by the petitioner in this regard. 15. In the circumstances of the case it would be reasonable if the petitioner is allowed three months' time to vacate the premises. This indulgence would be available to the petitioner provided he furnishes an undertaking before the Judge, Small Causes Court within three works of receipt of certified copy of this order indicating that he would deliver peaceful and vacant possession to the landlord after expiry of three months. The petitioner would also deposit the entire decretal amount and upto date rent at the rate of Rs. 24/- per month within one month and will also continue to pay rent till the premises are vacated. In case the aforesaid conditions are not complied with, this indulgence would not be available to the petitioner. Deposits already made shall be given due adjustment.