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2001 DIGILAW 878 (PNJ)

Asha Yadav v. Kanta Gupta

2001-08-20

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a civil revision and has been directed against the order dated 3.2.2000 passed by Civil Judge (Sr. Division)/Rent Controller. Gurgaon, who allowed the application under Order 9 Rule 13 CPC of the tenant and set aside the ex parte order of ejectment dated 3.8.1998. 2. Some facts can be noticed in the following manner :- The petitioners are the landlords and the respondent is the tenant. The petitioners filed an ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 for the eviction of the respondent on the grounds of non-payment of rent and change of user. The respondent was summoned for 13.10.1997. She was given copy of the summons on 7.10.1997 and along with the summon no copy of the petition was supplied to her. On 13.10.1997, the respondent did not turn up with the hope that the petitioners would withdraw the rent petition as the payment of the rent had been made to them. However, the learned Rent Controller passed the ejectment order on 3.8.1998 against the respondent directing her to vacate the demised premised within three months from the date of the passing of the order. Thereafter, the respondent/tenant filed an application under Order 9 Rule 13 CPC for setting aside the ex parte order on the ground that she was not duly served in the main proceedings and, therefore, the ejectment order could not be passed. The application was contested by the landlords and finally vide order dated 3.2.2000 the application allowed for the following reasons as given in para No. 8 of the impugned order :- "Admittedly, the copy of the ejectment petition was not served on applicant/respondent when a copy of summon was served upon him, therefore, it was no service in the eyes of law. There is sufficient ground to believe that the ex parte ejectment order was passed without giving an opportunity for appearing to the respondent, applicant and, therefore, the ex parte order dated 3.8.98 is hereby set aside. There is sufficient ground to believe that the ex parte ejectment order was passed without giving an opportunity for appearing to the respondent, applicant and, therefore, the ex parte order dated 3.8.98 is hereby set aside. Since today applicant not personally present and his counsel came, therefore, in the interest of justice, a period of one week is granted to the applicant/respondent for tendering the arrears of rent for the said period because there is no proof on the file that GPA of the petitioner has received the such arrears of rent out of the court because it is the duty of the applicant/respondent to prove the payment of the court, now to come up on 14.2.2000 for tendering rent." 3. The landlords are not satisfied with the impugned order, hence this revision. 4. I have heard the learned counsel for the parties and with their assistance have gone through the records of this case. 5. The learned counsel for the petitioners relied upon a judgment Risaldar Pakhar Singh v. Bhajan Singh (died) and another, 1987(1) PLR 146 : 1987(1) RCR(Rent) 519 (P&H) and submitted that the respondent/tenant had enough time to go to the court on 13.10.1997 and he could answer the claim since he had not gone to the court to Rent Controller on 13.10.1997. Therefore, by virtue of the proviso added to Order 9 Rule 13 CPC, the service is valid and the ex parte order of ejectment should not be set aside on the ground of mere irregularity. On the contrary, the learned counsel for the respondent has relied upon Babu Ram Bhatnagar v. Satish Kumar Rawal, 1991(2) PLR 234, where it was observed that due service, as mentioned in Order 5 Rule 2 CPC, means attachment of the copy of the plaint or a concise statement thereof along with the summons and this aspect of the case is mandatory. The second proviso added to Order 9 Rule 13 CPC lays down as follows :- "Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of the hearing and had sufficient time to appear and answer the plaintiffs claim." The reading of the above would show that before a person can take the benefit of second proviso, it has to be established on the record that the opposite party had sufficient time to appear and that he was in a position to answer the plaintiffs claim. Both the conditions must be satisfied together before the benefit of the second proviso added to Order 9, Rule 13 CPC can be availed by a person. The language of the second proviso was considered by the Honble Division Bench and it was observed as follows :- "The attachment of a copy of the plaint is mandatory and no due service can be said to be effected in the eye of law until and unless copy of the plaint is attached along with the summons. The question then arises in what circumstances second proviso to Rule 13 of Order 9 CPC comes into play and in what circumstances it can be availed of by the plaintiff. In our considered view the proviso would be attracted in a very exceptional case. It can apply to such type of cases where the plaintiff can prove affirmatively by producing categorical evidence that the defendant knew the exact claim made in the plaint and if upon production of such evidence the Court feels satisfied like anything that the exact nature of the claim was known to the defendant, the Court may record a finding that everything was within the knowledge of the defendant. As to what would be the quality of evidence, it is for the Court to take into consideration. However, it may be emphasised that the quality of the evidence which the Court may rely upon has to be superb. Only in such circumstances the defendant may not be heard to say that there was irregularity in the service of summons and the court may in such circumstances only refuse to set aside the ex-parte decree on the ground of irregularity in the service of summons. 6. Only in such circumstances the defendant may not be heard to say that there was irregularity in the service of summons and the court may in such circumstances only refuse to set aside the ex-parte decree on the ground of irregularity in the service of summons. 6. In fact, the judgment cited by the learned counsel for the petitioners was discussed and taken note of by the Division Bench and it has been overruled. In these circumstances, I have no hesitation in dismissing the present, revision and the same is hereby dismissed with costs of Rs. 1,000/-.