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2010 DIGILAW 2209 (ALL)

Gopal Prasad Pandey v. Naurangi Devi

2010-07-27

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Devendra Pratap Singh,J. - Heard learned counsel for the parties. This petition is directed against concurrent judgments dated 1.2.1994 and 15.5.2007 by which a suit for eviction and arrears of rent against the petitioner has been decreed by both the courts below. 2. The admitted facts are that the alleged registered agreement of sale dated 5.9.1983 was executed in favour of the petitioner tenant by one Bal Mukund Sharma holding power of attorney of the respondent owner and landlord and a Original Suit No. 189 of 1985 was also filed by the petitioner for specific performance of the said contract. During the pendency of the suit the respondent landlord instituted SCC Suit No. 32 of 1992 after due notice, for arrears of rent and eviction which was decreed ex parte on 1.2.1994 and the application for recall under Order 9 Rule 13 was also rejected and a revision against the ex parte decree was dismissed on the ground of delay on 21.12.1998 which was subjected to challenge in Writ Petition No. 11756 of 1999 before this court which was allowed vide order dated 14.7.2004 setting aside the revisional order and directing it to decide the revision on merits. While the aforesaid writ petition was still pending, the suit filed by the petitioner was dismissed on 30.11.2002 but with the relief for return of the part sale consideration against which the petitioner preferred Civil Appeal No. 9 of 2003. Upon remand by this Court, the rent revision has been dismissed on merits which is under challenge in this petition. During the pendency of this petition, the Civil Appeal No. 9 of 2003 preferred by the petitioner was also dismissed on 7.12.2009 against which he has filed a second appeal in the registry which has not been admitted till date. 3. From the record it is apparent that the only argument raised before the revisional court was with regard to service of notice on the petitioner which has been reiterated before this court. 4. It is urged that in view of Order V Rule 19-A C.P.C., the trial court was duty bound to issue summons for personal service apart from summons through registered post but since summons for personal service were never issued, service could not be presumed. 5. 4. It is urged that in view of Order V Rule 19-A C.P.C., the trial court was duty bound to issue summons for personal service apart from summons through registered post but since summons for personal service were never issued, service could not be presumed. 5. Order V Rule 19-A C.P.C. as it existed on the relevant date is quoted as under: "19-A. Simultaneous issue of summons for service by post in addition to personal service.__(1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain: Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary. (2)When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant of his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has not been received by the Court within thirty days from the date of the issue of the summons." 6. It is apparent from the record that neither this issue was raised before court below nor has been pleaded in this petition. Without establishing the factual aspect the aforesaid argument cannot be considered and since it is an old matter it would not be appropriate to remand only on this ground. 7. It is apparent from the record that neither this issue was raised before court below nor has been pleaded in this petition. Without establishing the factual aspect the aforesaid argument cannot be considered and since it is an old matter it would not be appropriate to remand only on this ground. 7. The revisional court after considering the facts in detail has recorded a categorical finding that once summons were sent to the correct address by registered post there was a presumption of service and the petitioner failed to prove otherwise. This finding has not been shown to be perverse. 8. No other point has been urged. 9. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.