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1998 DIGILAW 679 (MAD)

Maruthai v. Manickam

1998-04-27

S.JAGADEESAN

body1998
Judgment : 1. The petitioner in all the civil revision petitioner is the tenant. The respondent Manickam filed eviction proceedings in P.No.10 of 1993 before the Revenue Court/Special Deputy Collector, Tiruchirapalli against the petitioner as well as one Sanasi for arrears of rent for the period from 1982 to 1991. On 2.11.1993 an ex parte order was passed directing the petitioner to pay a sum of Rs.7,392 within 30 days. Since the petitioner did not comply with the said direction, eviction was ordered. The landlord filed E.P.No.31 of 1994 for evicting the respondents therein. On receipt of the notice, the petitioner filed a counter, contending that no summons were served on the petitioner in P.No.10 of 1993 and the order was also not communicated to him. Hence, he was not aware of the eviction proceedings before the Revenue Court. However, the petitioner filed M.P.No.55 of 1994 for setting aside the ex parte order dated 2.11.1993. M.P.No.53 of 1994 has been filed by the petitioner for the stay of E.P.No.31 of 1994 and M.P.No.54 of 1994 for condoning the delay of 271 days in seeking to set aside the ex parte order. The Revenue Court, by order dated 30.8.1994 dismissed M.P.No.53 to 55 of 1994 and ordered E.P.No.31 of 1994. Thereafter, he filed copy application for the certified copy of the order in P.No.10 of 1993 and filed the revision in C.R.P.No.3466 of 1997. The Revenue Court has dismissed the petitions on the ground that the petitioner had refused to receive the summons and the other respondent Sanasi failed to appear before the Revenue Court in spite of the notice in P.No. 10 of 1993. 2. Learned counsel for the petitioner contended that the endorsement made by the clerk in the Revenue Court reveals that the petitioner had refused to receive the summons but the summons have not been affixed as required under the procedure. Further the clerk, who had made the said endorsement stating that the petitioner refused to receive the summons, has not been examined by the Revenue Court to prove the same. Moreover, the order of the Revenue Court ought to have been served on the petitioner. Since the order has not been communicated, the petitioner has filed the petition for setting aside the ex parte order within 30 days from the date of knowledge. Moreover, the order of the Revenue Court ought to have been served on the petitioner. Since the order has not been communicated, the petitioner has filed the petition for setting aside the ex parte order within 30 days from the date of knowledge. Only by way of abundant caution, the petition under Sec.5 of the Limitation Act has been filed. The Revenue Court is not correct in dismissing the petitions merely on the ground that the petitioner has refused to receive the summons. 3. On the contrary, the counsel for the respondent contended that the proceedings under the Tamil Nadu Cultivating Tenants Protection Act are summary in nature. The procedure as laid down in the Civil Procedure Code cannot be made applicable in strict sense. The clerk of the Revenue Court, who was entrusted with the service of notice in the eviction proceedings, has made an endorsement that the petitioner refused to receive the summons and the Revenue Court has accepted the statement made by the clerk and found that there was effective Service and ultimate proceeded with the matter further. When once it has been held that the service is completed, thereafter, there is no need for the Revenue Court to examine the concerned clerk to establish the endorsement made by him. The Revenue Court has rightly dismissed the petitions filed by the petitioners. 4. I carefully considered the contentions of the counsel for both sides. I have perused the records. In fact, in the summons, it has been stated as follows: "TAMIL" It is merely stated that the notice has been served and whether the service is by affixture or otherwise is not clear. In the earlier sentence he made in very clear that Maruthai refused to receive the summons. Only to avoid the inordinate delay, the proceedings under the special statutes have been made summary in nature. But sometimes even though the legislature has made the proceedings as summary in nature, the parties and the counsel convert the same into a cumbersome one by their conduct. 5. The Revenue Court by order dated 2.11.1993 has directed the petitioner to deposit a sum of Rs.7,392 within 30 days from the date of the receipt of the said order. But sometimes even though the legislature has made the proceedings as summary in nature, the parties and the counsel convert the same into a cumbersome one by their conduct. 5. The Revenue Court by order dated 2.11.1993 has directed the petitioner to deposit a sum of Rs.7,392 within 30 days from the date of the receipt of the said order. From the original order available in the records, at page 19 of the File, it is not clear as to whether the said copy of the order had been despatched to the petitioner or not. In case, the said order had not been despatched, then naturally the petitioner may not have knowledge about the order. Normally, whenever the order is passed, the Revenue Court despatches the same to the concerned parties. Since there is nothing on record to show that the conditional order dated 2.11.1993 had been served on the petitioner, it has to be taken that the said order has not been served on the petitioner. It is the normal procedure that the Revenue Court would despatch the copy of the order to the concerned parties and in fact, I find at page Nos.48, 74, 78 and 84 in the File that the orders dated 30.8.1994 in E.P.No.31 of 1994, M.P.No.53 of 1994, M.P.No.54 of 1994 and M.P.No.55 of 1994 respectively had been despatched to the parties. Though there is a specific seal in the aforesaid orders, I do not find any such seal to that effect in the order dated 2.11.1993. Since the parties have to be served with the impugned orders, the fact that the party remains ex parte has not relevance. Even though on receipt of the summons, if the parties remain ex parte and fail to take part in the proceedings and an ex parte order either directing the tenant to deposit the rent or for eviction is passed, such orders are required to be served on the tenants. As it has been found that the order dated 2.11.1993 has not been served on the petitioner, I am of the view that the petition for setting aside the ex parte order dated 2.11.1993 has been filed within 30 days from the date of knowledge. 6. As it has been found that the order dated 2.11.1993 has not been served on the petitioner, I am of the view that the petition for setting aside the ex parte order dated 2.11.1993 has been filed within 30 days from the date of knowledge. 6. I am fortified in my view by the decision of the Supreme Court reported in C.K.Lokesh v. P.E.Panduranga Naidu C.K.Lokesh v. P.E.Panduranga Naidu C.K.Lokesh v. P.E.Panduranga Naidu , (1997)2 L. W. 645 wherein the learned Judges have held as follows: “The learned District Judge after going through the entire material on record came to the above conclusion that the appellant had not been served with a notice and, therefore, he was entitled to file the application under Art. 123 of the Schedule of Limitation Act, which is 30 days from the date of knowledge. Accordingly, the application came to be filed, though belated by 2,015 days. Under these circumstances, the learned District Judge was right in holding that the appellant had filed the application to set aside the ex parteappeal within 30 days from the date of knowledge. The High Court was clearly in error in interfering with the order passed by the District Judge.” The Supreme Court has dealt with a case where the summons have not been served. In the case on hand, though the summons had been refused, the order was not communicated to the petitioner. Since it is the duty of the quasi-judicial authorities to despatch the orders to the concerned parties, the non-despatch of the copy of the order will amount to want of knowledge on the part of the petitioner about the ex parte order. Hence, the petitioner filed the petition for setting aside the ex parte order from the date of knowledge. In view of the above said principles, the order of the court below is liable to beset aside. 7. The Revenue Court is not correct in dismissing the petitions on the only ground that the petitioner refused to receive the summons P.No.10 of 1993. Consequently. C.R.P.No.3037 of 1994 and C.R.P.No.3466 of 1997 are allowed and M.P.No.54 of 1994 is ordered and P. No. 10 of 1993 is restored to file. The Revenue Court/Special Deputy Collector, Tiruchirappalli is directed to dispose of the same on merits and in accordance with law. Consequently, C.R.P.Nos.3036 and 3038 of 1994 are also allowed. No costs. 8. Consequently. C.R.P.No.3037 of 1994 and C.R.P.No.3466 of 1997 are allowed and M.P.No.54 of 1994 is ordered and P. No. 10 of 1993 is restored to file. The Revenue Court/Special Deputy Collector, Tiruchirappalli is directed to dispose of the same on merits and in accordance with law. Consequently, C.R.P.Nos.3036 and 3038 of 1994 are also allowed. No costs. 8. It is made clear that before ever P.No. 10 of 1993 is taken up for disposal, the petitioner is directed to deposit the entire arrears upto 1997 if any within four weeks from today. In case, this condition is not complied with, all the civil revision petitions shall stand dismissed. The respondent is at liberty to withdraw the arrears of rent which had already been deposited by the petitioner without furnishing any security.