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2013 DIGILAW 2415 (MAD)

Parameswaran v. Sarumathi

2013-07-11

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. This Civil Revision Petition is filed against an order dated 20.07.2010 made in M.P. No.213 of 2010 in R.C.O.P. No. 2197 of 2008 on file of the XIII Small Causes Court, Chennai wherein and whereby the court below has rejected the application filed by the petitioner under Section 5 of the Limitation Act seeking to condone the delay of 420 days to set aside the ex parte order of eviction. 2. The respondent herein as the landlord filed R.C.O.P No. 2197 of 2008 on the file of the Small Causes Court, Chennai seeking for eviction of the petitioner herein on the ground of wilful default and owner's occupation. The learned Rent Controller passed an exparte order of eviction on 22.1.2009, since the petitioner did not appear before the Court on the said day. Consequently, the petitioner filed an application under Section 5 of the Limitation Act on 16.4.2010 seeking to condone the delay of 420 days in filing the petition to set aside the exparte order passed on 22.1.2009. The said application came to be rejected on 20.7.2010. Aggrieved against the same, the present Civil Revision Petition is filed before this Court. 3. Learned counsel appearing for the petitioner submitted that no notice was served on the petitioner/tenant in the R.C.O.P. and in the absence of service of notice, the petitioner is entitled to be heard on merits by setting aside the exparte order. The petitioner filed the application under Section 5 of the Limitation Act immediately after having the knowledge about the said exparte order, at the time of attending the distress proceedings initiated by the respondent in Distress Application No. 6 of 2009 on the file of the Registrar, Small Causes Court Chennai. The learned counsel further submitted that no prejudice would be caused to the other side if proper opportunity is given to the tenant to contest the matter on merits. In support of her submissions, the learned counsel relied on the following decisions. 1. N.Balakrishnan Vs. M.Krishnamurthy (1998(2) CTC 533) 2. N.P.Srinivsan Vs. S.Santhalakshmi (2013(3)CTC 220) 3. Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others ( 2002 (5) SCC 377 ) 4. Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai ( 2012 (5) SCC 157 ) 4. In support of her submissions, the learned counsel relied on the following decisions. 1. N.Balakrishnan Vs. M.Krishnamurthy (1998(2) CTC 533) 2. N.P.Srinivsan Vs. S.Santhalakshmi (2013(3)CTC 220) 3. Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others ( 2002 (5) SCC 377 ) 4. Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai ( 2012 (5) SCC 157 ) 4. Per contra, the learned counsel appearing for the respondent/landlord submitted that the delay of 420 days is enormous and not explained by the petitioner with sufficient cause. The Rent Control Court has followed the proper procedure under Order 5 Rule 17 CPC in effecting service of summon on the petitioner/ tenant and when the affixture is also admitted by the petitioner, the petitioner cannot be permitted to say that there was no service of summon. It is his further contention that the notice sent by the Court through registered post was returned with an endorsement 'refused'. Therefore, the Court has taken note of those facts and came to the conclusion that the petitioner has not shown sufficient cause for condoning the delay of 420 days and consequently rejected the application. He also submitted that the decisions relied on by the learned counsel for the petitioner are factually distinguishable as in all those cases the finding of the Court was that there was absence of service of summons to the parties therein. Further, he submitted that the petitioner entered appearance in the Distress proceedings on 14.9.2009 and even thereafter he kept quiet for nearly seven months without filing the application under Section 5 of the Limitation Act. Thus, it shows that there is no bonafide on his part. 5. Heard the learned counsel appearing on either side and perused the materials placed before me and also considered the decisions relied on by the learned counsel appearing for the petitioner. 6. The point for consideration in this case is as to whether the petitioner has shown sufficient cause for his non-appearance on 22.1.2009 before the learned Rent Controller. 7. The undisputed facts of this case are as follows:-The respondent as the landlord filed R.C.O.P No. 2197 of 2008 on the file of the Small Causes Court, Chennai seeking eviction of the petitioner herein on the ground of wilful default and owner's occupation. The learned Rent Controller passed an exparte order on 22.1.2009 by allowing the said petition as the petitioner herein remained absent. The learned Rent Controller passed an exparte order on 22.1.2009 by allowing the said petition as the petitioner herein remained absent. The petitioner, thereafter filed the application under Section 5 of the Limitation Act to condone the delay of 420 days in filing the set aside petition. The said application came to be filed only on 16.4.2010. The petitioner filed an affidavit in support of the said application and stated that he had not received any notice from the court and only when the Distress Application No.6 of 2009 filed by the respondent was posted before the Registrar, Small Causes Court for arguments on 16.4.2010, he came to know about the exparte order passed in R.C.O.P. No 2197 of 2008. Thus, his categorical assertion is that no notice was served on him. The Court below while considering the said submissions has found that the notice sent through court was returned as 'refused' and when the petitioner had wantonly refused to receive the notice, he cannot be permitted to say that no notice was served on him. The Court below also pointed out that even after filing the Distress Application in the year 2009, the petitioner did not take any steps immediately to file the set aside petition. Based on the above findings, the Court below rejected the said application. Now, before this Court, as it is contended by the petitioner that there was no service of summon in the R.C.O.P. proceedings on him, it is to be seen as to whether any notice was served on him or not. 8. Learned counsel appearing for the petitioner submitted that on perusal of the lower court records, the petitioner is given to understand that the bailiff has only affixed the notice on the doors of the premises since it was locked and no one was there in the premises to receive the same. Thus, the affixture of notice is admitted by the learned counsel for the petitioner. Apart from such affixture, notice sent through RPAD by the Court was also returned as 'refused'. When the notice sent by the Court and sought to be served on the petitioner/tenant was affixed in the mode of service through bailiff and returned as 'refused 'in the mode of service through registered post, I fail to understand as to how the petitioner is justified in saying that there was no service of notice in this case. When the notice sent by the Court and sought to be served on the petitioner/tenant was affixed in the mode of service through bailiff and returned as 'refused 'in the mode of service through registered post, I fail to understand as to how the petitioner is justified in saying that there was no service of notice in this case. Notice is issued to the parties through various modes only to make sure that atleast in any one of those modes, the service is effected properly on the parties. Notice sent through several modes does not mean that it should be served to the parties necessarily in all such modes. Even if service of notice is effected in any one of such modes, it has to be construed that the service is completed. Affixture is one such mode and sending through RPAD is another mode. Here in this case, the bailiff affixed the notice as the door was locked. The service of notice through registered post was also returned as refused. Therefore, the petitioner cannot be permitted to say that there was no service of notice at all. The Court below has also found from the perusal of the court records that notice sent through court was returned as 'refused'. Needless to say that refusal to receive a court notice, tantamounts an effective service of the same and the party who refused to receive it can not plead ignorance of its contents. When that being the position, it cannot be contended by the petitioner that there was no service of notice and consequently his non-appearance on 22.1.2009 has to be condoned. 9. No doubt, the learned counsel for the petitioner relied on the decisions reported N.Balakrishnan Vs. M.Krishnamurthy (1998(2) CTC 533); N.P.Srinivsan Vs. S.Santhalakshmi (2013(3)CTC 220) ; Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others ( 2002 (5) SCC 377 ) ; Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai ( 2012 (5) SCC 157 ). There is no quarrel about the proposition laid down therein. It is true that if there was no service of notice, then the party should be given an opportunity to be heard on merits. In all those decisions, there was a categorical finding that there was no service of notice on the parties in those proceedings . There is no quarrel about the proposition laid down therein. It is true that if there was no service of notice, then the party should be given an opportunity to be heard on merits. In all those decisions, there was a categorical finding that there was no service of notice on the parties in those proceedings . Only under those circumstances, this Court as well as the Apex Court came to the conclusion that in the absence of service of of notice, the party should be given an opportunity to put forth the case on merits. But, in this case, as the Court below has found that the notice was sent and the same was refused apart from the fact that bailiff has also effected the service by affixture, the facts of those cases relied on by the learned counsel for the petitioner are totally different and distinguishable and cannot be relied on in support of the facts and circumstances of the present case. 10. Accordingly, I find that the petitioner has not shown sufficient cause to condone the delay and the Court below has rightly rejected the application filed by the petitioner which order does not warrant any interference. I find no merits in the Civil Revision Petition and accordingly, the same is dismissed. No costs.