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2002 DIGILAW 751 (KAR)

M. v. THIPPESWAMY VS V. R. JAMPURI

2002-12-03

body2002
SRINIVASA REDDY, J. ( 1 ) THE petitioner landlord has filed the present petition calling in question the validity and correctness of the order dated 23-2-2001 passed in Misc. No. 51/97 on the file of the Chief Judge of Small Causes, Bangalore allowing the miscellaneous petition filed for recalling the order placing the petitioner tenant ex-parte. ( 2 ) THE facts relevant for the disposal of the petition, briefly stated, are as follows: the petitioner landlord filed H. R. C 649/96 for eviction of the respondent-tenant under Sec. 21 (1) (h) and (p) of the Karnataka Rent Control Act, 1961. Notice to respondent was ordered on 18-4-1996 through court only. Notice was not ordered to be issued through registered post. The summons was issued by the court on 19-4-1996 fixing the date of hearing as 24-6-1996. The process server while allegedly serving the summons on 29-5-1996 made the following endorsement. The above endorsement is attested by two witnesses viz. S. J. Ramesh and K. S. M. Jois. S. J. Ramesh is a resident of 4th Block, Jayanagar, Banglore and Sri. K. S. M. Jois is a resident of C. R. Layout, J. P. Nagar I phase, Bangalore. The process was returned by the process server to the court with a affidavit sworn to before the Sheristedar of City Civil Court, Bangalore on 1. 6. 1996. The affidavit reads: the case was called out on 24-6-1996 at 11. 30 a. m. The respondent -tenant was absent. The report of the process server was perused by the court. Noting the refusal on the part of the respondent-tenant the court made an order treating the service as sufficient and placed the respondent-tenant ex-parte. The Court after hearing the petitioner-landlord passed an order on 24-10-1996 allowing the petition filed under Sec. 21 (1) (h) of the Act but dismissed the petition filed under Sec. 21 (1) (p) of the Act. The landlord filed the execution petition in Ex. Case No. 181/97. The order was executed on 7-2-1997. The respondent-tenant filed Miscellaneous petition No. 51 of 1997 on 12-2-1997 for setting aside the ex-parte decree dated 24-10-1996 in H. R. C. No. 649/96. The petitioner submitted in the Misc. Petition that the respondent-tenant was not aware of any proceedings against him and that no notice was served on him by any one. The order was executed on 7-2-1997. The respondent-tenant filed Miscellaneous petition No. 51 of 1997 on 12-2-1997 for setting aside the ex-parte decree dated 24-10-1996 in H. R. C. No. 649/96. The petitioner submitted in the Misc. Petition that the respondent-tenant was not aware of any proceedings against him and that no notice was served on him by any one. It was alleged that the notice was fraudulently suppressed by the process server for reasons best know to him. The respondent-tenant also took exception to the case being filed naming United Enterprises as the respondent when he in his personal capacity was the tenant of the premises. It was also mentioned in the petition that even the show-cause notice was not served on him in the execution proceedings. ( 3 ) THE petitioner-landlord filed detailed objections to the miscellaneous petition. The court-below after hearing both sides passed the impugned order recalling the order dated 24-10-1996 passed in H. R. C 649/96. Hence the present revision petition. ( 4 ) I have heard the learned counsel on both sides. ( 5 ) THE court-below taking exception to the non-examination of the witnesses who had attested the endorsement by the process server on 29-5-1996 to the effect that the respondent-tenant refused the process and, therefore, the summons was affixed on the door of the premises, rejected the claim of the petitioner-landlord that there was proper service of summons. The court on finding that there is no way of knowing whether the petitioner-landlord identified V. R. Jampuri as the respondent tenant or some body else for the benefit of the process server, the process-server himself being no more and the mahazar witnesses not being examined by the landlord, came to the conclusion that service of summons on the respondent-tenant was not established. The contention of Mr. Shekar Shetty, learned counsel for the petitioner, is that the decision in the eviction petition having become final the same could not have been reopened by the court-below. ( 6 ) THEREFORE, the question that arises for my consideration is: whether the court-below was right in allowing the Misc. Petition and setting aside the ex-parte order? ( 7 ) THE onus of establishing that the summons was not duly served on him lies on the defendant who suffered an ex-parte order. The respondent-tenant examined himself and denied the service of notice on him by any person. Petition and setting aside the ex-parte order? ( 7 ) THE onus of establishing that the summons was not duly served on him lies on the defendant who suffered an ex-parte order. The respondent-tenant examined himself and denied the service of notice on him by any person. He firmly denied the case set up by the petitioner-landlord that he refused to accept notice when the same was sought to be served on him by the process server after he was identified as the tenant by the landlord. As against this case excepting the testimony of the petitioner-landlord that the respondent-tenant declined to receive the notice there is nothing on record to prompt the court to accept the case set up by the petitioner-landlord. The endorse- ment and the affidavit of the process-server are not of much consequence in this case because the court-below did not have the benefit of the statement from him on this aspect of the matter when it was seized of the miscellaneous petition as, by then, the process-server was no more. If really there was refusal on the part of the respondent-tenant to receive notice the same could have been established by the petitioner-landlord by examining the witnesses who had attested the endorsement. Their addresses are found in the endorsement itself. Nothing could have prevented the landlord from taking their aid in order to prove his case. Had they really witnessed the service of notice on the tenant, they would have readily come forward and spoken about the service of notice, having attested the endorsement made by the Process Server. The very circumstance that they have not been examined by the petitioner-landlord either because of their reluctance to depose before court or because the landlord had not chosen to expose them lest the truth would be out, coupled with the fact that there is an emphatic denial on the part of the respondent-tenant go to show that the service of notice on the respondent-tenant has not been established by the petitioner-landlord. The conduct of the tenant in immediately approaching the court and taking all necessary steps to set at nought the ex-parte order after his eviction from the petition premises also lends credence to his case that the notice was never served on him. The conduct of the tenant in immediately approaching the court and taking all necessary steps to set at nought the ex-parte order after his eviction from the petition premises also lends credence to his case that the notice was never served on him. The right of tenancy being a substantive right, it can be denied to a person only through a process known to law and if by playing mischief a party is denied the right of hearing and as an outcome of such denial of the opportunity of hearing he was made to lose a substantial right, the court taking into consideration these aspects was right in recalling the ex-parte order and setting aside the decree passed against him. ( 8 ) THE learned Sr. Counsel Mr. Shekar Shetty relied on a decision of this Court in Suresh Babu v. S. Susheela Thimmegowda, ILR 1998 KAR 3885, wherein this court made the following observation: a decision rendered by a competent court becomes final and conclusive when all the statutory avenues of challenge there to by way of appeal, revision, review, rectification or otherwise are availed and exhausted, or are not availed with in the period prescribed by law and thus becomes un assailable. ( 9 ) RELYING on the above observation of this court in the said case, the contention advanced by Mr. Shekar Shetty is that the time limit prescribed for appealing against the eviction order having already lapsed by the time the Misc. Petition came to be filed, the court-below ought not to have exercised its jurisdiction in favour of the tenant to set aside the eviction order which had become final and conclusive. This court laid down the above principle while examining the effect of the decision of the Apex Court in Shoba Surendra v. H. V. Rajan (C. A. 13754 of 1996 D. D. 1-11-1996) on cases which had become final and cases which were still pending on the date of the said decision of the Apex court. In the case of Shoba Surendra, Supra, that Apex Court was seized of the decision of the Division Bench of this court in Padmanabha Rao v. State Of Karnataka, ILR KAR 1986 2480 where in this court held that Sec. 31 of (Karnataka Act No. 22 of 1961) was void. In the case of Shoba Surendra, Supra, that Apex Court was seized of the decision of the Division Bench of this court in Padmanabha Rao v. State Of Karnataka, ILR KAR 1986 2480 where in this court held that Sec. 31 of (Karnataka Act No. 22 of 1961) was void. Reversing the decision of the Division Bench, the Apex Court held that Sec. 31 (Karnataka Act No. 22 of 1961) was not void and should be treated as having continued to be on the statute book. This decision of the Apex Court resurrecting Sec. 31 affected a large number of cases, which proceeded on the premise that Sec. 31 was not in the statute book as the same was declared void by the Division bench of this court. It is while referring to the effect of the decision in Shoba Surendra, supra, on the cases disposed of during the period in which Sec. 31 was in eclipse that this court had made the above observation. Even assuming the said observation does apply to this case on principle, if not on facts, still it would not advance the case of the petitioner any further because Or. 9, Rule 13 is an avenue provided under the Code of Civil Procedure for rectifying, reviewing or revising any errors that may have been committed by the Court on the Court realizing its folly. The court-below having found that it had committed and error in wrongly constructing service of notice on the respondent as proper service when in fact it was not served on him at all, it had acted in conformity with law by rectifying, reviewing or revising the error committed by it in holding the service as sufficient. Thus, the principle laid down in the decision referred to supra does not advance the case of the petitioner. In the result, for the reasons, stated above, I find no merit in this revision and the same is accordingly dismissed. --- *** --- .