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2004 DIGILAW 990 (PNJ)

Sardar Singh v. Krishan Lal Bharti

2004-09-02

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for brevity the Act) prays for quashing Order dated 8,6.2001 passed by the Rent Controller, Rohtak declining the application of the sub-tenant/petitioner to set aside the ex parte proceedings taken against the petitioner after 14.12.1995. 2. Brief facts of the case are that the landlord-respondent Mahesh Chander (later substituted by the present landlord-respondent, who is the subsequent vendee) filed an ejectment petition under Section 13 of the Act being rent petition No. 48/97 of 2001 against Vidyawati, tenant and also against the petitioner and impleaded him as a party on the allegation that he has been a sub-tenant. It was alleged that the tenant Vidya Wati had sub-let the demised shop to the sub-tenant-petitioner. On the presentation of the petition and its registration, notices were issued to the petitioner. He had duly received the summons for 14.12.1995 and the endorsement on the summons clearly shows that the petitioner had recorded with his own hands on the summons that he had been working in the shop, he had no connection with this case and it was not his duty to receive the notice. He also mentioned that his fathers name was not Dev Raj. After the receipt of summons, the Court recorded in its order dated 14.12.1995 that the service is complete although no express order of ex parte against the petitioner was passed. Thereafter, an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (for brevity, the Code) was filed by the vendee landlord-respondent for replacing the name of Mahesh Chander, the vendor who had originally filed the application for ejectment which was dismissed by the Rent Controller on 29.1.1998. The order passed by the Rent Controller was challenged before the Appellate Authority which vide its order dated 12.3.1998 allowed the appeal and the application of the vendee, landlord-respondent No. l and the case was sent back to the Rent Controller for 21.3.1998. The other material date which is necessary to mention is, 18.5.1999, when landlord-respondent No. l filed an application under Order 6 Rule 17 of the Code which was allowed. It is also appropriate to mention that the petitioner had duly signed the report of the Local Commissioner. The other material date which is necessary to mention is, 18.5.1999, when landlord-respondent No. l filed an application under Order 6 Rule 17 of the Code which was allowed. It is also appropriate to mention that the petitioner had duly signed the report of the Local Commissioner. After having chosen not to appear before the Rent Controller on 14.12.1995, the petitioner filed an application before the Rent Controller in 2001 under Order 9 Rule 7 of the Code for setting aside the ex parte proceedings against him. The application has been dismissed and the operative part of the order reads as under:- " 4. The words of Order 9 Rule 7 CPC are very specific when it states that "where the court has adjourned the hearing of the suit ex parte and the defendant, on or before such hearing, appears and assigns good cause from his previous non-appearance he may upon such terms as the court directs as to cause or otherwise, be heard in answer to the suit as he has appeared on the date fixed for his appearance. Perusal of summons sent for 14.12.1995 shows service of these summons on respondent No. 2 when these summons have been signed by the Respondent No. 2 himself. The learned counsel for the petitioner has also pointed out the attention of the court to the memo of appearance which was recorded by the Local Commissioner who was appointed by the court, dated 17.7.1999 which also bears signatures of respondent No. 2 in the said memo of appearance. Then is the fact that the parties in the present suit had gone in appeal challenging the order of the lower Court passed on application under Order 1 Rule 10 CPC wherein the appeal before learned A.D.J. Rohtak, defendant No. 2 was also proceeded ex parte. Meaning thereby that the contention of respondent No. 2 that after his service for the date 14.12.1995, respondent came to know about the ex parte proceedings only on 27.3.2001, is not believable. 5. The present application has not been supported with any application for condonation of delay under the Limitation Act for filing the present application is apparently time barred because of the fact that the respondent No. 2 was served on 14.12.1995 and as per his case, knowledge of ex parte proceedings came to knowledge of respondent No. 2 only on 27.3.2001. The present application has not been supported with any application for condonation of delay under the Limitation Act for filing the present application is apparently time barred because of the fact that the respondent No. 2 was served on 14.12.1995 and as per his case, knowledge of ex parte proceedings came to knowledge of respondent No. 2 only on 27.3.2001. Then is the fact that as pointed out by the learned counsel for the petitioner, the respondent No. l was duly service (served ?) for 14.12.1995, his appearance has also been recorded in the memo of appearance recorded by the Local Commissioner/Expert dated 17.7.1999 and also in the appeal preferred against Order 1 Rule 10 CPC, respondent No. 2 was also proceeded ex parte. Now the fact remains, once the respondent No. 2 was served for 14,12-1995, and the present application has been moved on 21.4.2001, the delay is not explained and as held in P.L.R. (2000-i) Part II, Feb., 28, the application is not maintainable. Another fact is when as per the case of respondent No. 2 himself he came to know about the ex parte proceedings on 27.3.2001 he has filed the present application only on 21,4.2001. In these circumstances, the application is dismissed." 3. Mr. Harsh Kinra, learned counsel for the petitioner has argued that there is no ex- press order initiating ex parte proceedings against the petitioner as per the mandate of Order 9 Rule 6 of the Code and in the absence of any express order in that regard, no ex parte proceedings could be initiated. The learned counsel has further submitted that notice was also necessary after the withdrawal, allowing of the appeal by the Appellate Authority and amendment in the ejectment petition after the appeal and the application of the landlord-respondent were allowed. It was received by the Rent Controller on 21.3.1998 when service was effected on the other parties. He has also submitted that in any case, the service was defective as the fathers name of the petitioner was incorrectly mentioned as Dev Raj. Whereas name of father of the petitioner is Bansi Lal. 4. Mr. Rakesh Nehra, learned counsel for the respondent has argued that on 14.12.1995, the petitioner has duly received the summons and according to the endorsement made on the summons, he has shown complete lack of interest in the proceedings initiated against him. Whereas name of father of the petitioner is Bansi Lal. 4. Mr. Rakesh Nehra, learned counsel for the respondent has argued that on 14.12.1995, the petitioner has duly received the summons and according to the endorsement made on the summons, he has shown complete lack of interest in the proceedings initiated against him. The learned counsel has pointed out that even the report of Local Commissioner was duly signed by the petitioner. The learned counsel has maintained that after due service of notice and taking part in the proceedings conducted by the local commissioner, he had chosen not to appear then he has done so at his own risk. The learned counsel has also pointed out that the application has been filed after about six years and it cannot be accepted that he was not aware of the proceedings specially after the service was complete. The learned counsel has lastly submitted that in any case in another proceedings filed in Rent Petition No. RBT 7/1998 instituted on 5.2.1998/ 4.4.2000 by landlord-respondent No. l, the ejectment of the tenant-respondent as well as the petitioner has already been ordered on 15.6.2004. In execution of the aforementioned order, the possession has also been obtained by the landlord-respondent. 5. Having heard the learned counsel for the parties at considerable length, I am of the considered view that this petition lacks merit and is thus liable to be dismissed. A perusal of Order V Rules 16, 18 and 19(A) of the Code makes it abundantly clear that when the acknowledgement signed by the defendant or his agent is received by the Court, the Court issuing the summons has to declare that due service has been effected on the defendant. The aforementioned rules are reproduced hereunder for facility of reference: Order V Issue and service of summons "16. Person sensed to sign acknowledgement- Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to acknowledgement of service endorsed on the original summons." "18. Person sensed to sign acknowledgement- Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to acknowledgement of service endorsed on the original summons." "18. Endorsement of time and manner of service.- The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons were served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. "19.A. A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of the summons." 6. A conjoint reading of Rules 16 and 18 of Order V of the Code would show that process server in all cases in which summons have been tendered to the defendant personally or to his agent shall obtain his own endorsement stating the time and the manner of serving summons. It is on the receipt of such acknowledgement duly singed by the defendant or his agent, the Court declares that summons have been served. Rule 19(2) of Order V of the Code provides for service of summons by registered post and its non- receipt within 30 days came up for consideration before the Supreme Court in a rent matter in the case of Basant Singh v. Roman Catholic Mission, (2002-3)132 P.L.R. 677:2002(7) S.C.C. 531. It has been emphasised that after summons were sent by registered post to a correct and given address the defendants own conduct becomes important. The observations of their Lordships read as under: "Once it is proved that summons were sent by registered post to a correct and given address, the defendants own conduct becomes important. In the present case the premises in question were occupied by two defendants, the appellants, jointly; H and B. H appeared and examined himself stating that he did not receive the registered letter. In the present case the premises in question were occupied by two defendants, the appellants, jointly; H and B. H appeared and examined himself stating that he did not receive the registered letter. However, the defendant B did not appear and no evidence whatsoever, on this behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due. His own conduct shows that the registered summons had been duly served on him. He appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered summons were duly served on B, but not on H, when they occupied the tenanted premises jointly." 7. In the present case summons were duly served on the sub-tenant petitioner for 14.12.1995 and there is long endorsement made by the petitioner with his own hands as is evident from the report of Ganesh Das, Process Service (A/2) dated 20.11.1995. In his endorsement, the petitioner stated that name of his father was not Dev Raj and he has been working on the demised shop. He further stated that he had no connection with the case and therefore it was not his duty to receive notice. The endorsement made by the Process Service shows that after reaching the spot he made enquiry about the petitioner for effecting service and Sardar Singh has made an endorsement on the notice with his own hand in Hindi. On 14.12.1995, the Court declared that service is complete which in fact meant ex parte proceedings against the petitioner. This mere non-mentioning of the words ex parte proceed is not necessary in the facts and circumstances of the case as the petitioner expressly made it clear that he does not wish to contest the case. The error in the name of the father of the petitioner would also not be significant as it is no bodys case that petitioner was a person other than a party to the proceeding. The error in the name of the father of the petitioner would also not be significant as it is no bodys case that petitioner was a person other than a party to the proceeding. Once the service is complete as declared by the Court on 14.12.1995 and the petitioner himself declared in so many words his intention not to contest the ejectment petition, there cannot be any other conclusion except that the petitioner was proceeded ex parte. I am further of the view that on subsequent occasions there was no necessity to issue fresh notice to the petitioner either on the application filed by the landlord-vendee who subsequently became owner of the demised shop under Order 1 Rule 10 and under Order VI Rule 17 of the Code. It is appropriate to mention that while issuing summons of the ejectment petition on 11.11.1995 for 14.12.1995, the Court has also appointed a Local Commissioner. The petitioner has duly signed the report of the Local Commissioner which shows that he participated in the proceedings conducted by the Local Commissioner. It is further evident that the petitioner filed an application for setting aside ex parte proceedings in the year 2001 after about six years and there is no explanation for the huge delay. The petitioner is fully aware of the proceedings as he has been working at the demised shop under the tenant Vidya Wati. Moreover, certified copy of the judgment dated 15.6.2002 passed by the Rent Controller, Rohtak shows that ejectment of the petitioner along with another has already been ordered in the aforementioned case. Certified copy of the order dated 15.6.2002 is taken on record as Mark A. There is no opposition to the statement made by the learned counsel for the landlord-respondent that possession of the demised shop has also been delivered to the landlord-respondent. Therefore, the instant petition is liable to be dismissed. For the reasons above, the petition fails and the same is dismissed.