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Himachal Pradesh High Court · body

2015 DIGILAW 151 (HP)

Dina Nath v. Uma Shandil

2015-03-09

TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, J. This Revision Petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987 (for short the ‘Act’) is directed against the judgment passed by the Appellate Authority (III), Shimla, whereby it upheld the ex parte order of eviction passed by the learned Rent Controller. 2. The respondent/landlord filed a petition under Section 14 of the Act seeking eviction of the petitioner herein from a single room shed situated at Khasra No. 242 situated at Mauja Kanlog below Cemetery Shimla on the premise that the tenant had failed to make the monthly payment of rent, which had been fixed at Rs.250/- per moth w.e.f. September, 2004 till the filing of the petition. 3. Notice of the petition was issued to the respondent, which according to the learned Rent Controller had been duly served upon him on 18.9.2009, but since neither the petitioner nor any authorized agent on his behalf appeared on the aforesaid date or any subsequent dates, ex parte proceedings were carried out against him, resulting in order of eviction. 4. The petitioner assailed this order before the learned lower Appellate Authority, who too vide judgment dated 4.9.2014 dismissed the appeal preferred by the petitioner. That is how the matter is now before this Court. I have heard the learned counsel for the parties and have gone through the records. 5. Leaned counsel for the petitioner has vehemently argued that both the authorities below have failed to exercise the jurisdiction vested in them in accordance with law, since the petitioner was never served in the case and therefore, no ex parte proceedings could have been drawn against the petitioner and consequently the orders passed by both the authorities cannot be sustained. 6. Order V Rule 17 of the Code of Civil Procedure reads thus:- “17. Procedure when defendant refuses to accept service or cannot be found. 6. Order V Rule 17 of the Code of Civil Procedure reads thus:- “17. Procedure when defendant refuses to accept service or cannot be found. Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.” Learned counsel for the petitioner contends that the endorsement made by the Process Server that the tenant refused to accept the summons and that thereafter he had affixed those summons on the demise premises is not sufficient compliance of the aforesaid provision. In support of his contention, he has placed reliance upon judgment of Hon’ble Supreme Court in Sushil Kumar Sabharwal Vs. Gurpreet Singh and Others (2002) 5 SCC 377 , more particularly observations as contained in paragraphs 8, 11 and 12 of the judgment, which reads thus:- “8. We find several infirmities and lapses on the part of the process server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witness available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidentally, we may state that though the date of appearance was 23.2.1993 the summons is said to have been tendered on 22.2.1993 i.e. just a day before the date of hearing. 11. The High Court has overlooked the second proviso to Rule 13 of Order 9 CPC, added by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. It is the knowledge of the “date of hearing” and not the knowledge of “pendency of suit” which is relevant for the purpose of the proviso abovesaid. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. Then the present one is not a case of mere irregularity in service of summons; on the facts it is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim which he did not avail and utilize. 12. The provision contained in Order 9 Rule 6 CPC is pertinent. It contemplates three situations when on a date fixed for hearing the plaintiff appears and the defendant does not appear and three courses to be followed by the court depending on the given situation. The three situations are: (i) when summons duly served, (ii) when summons not duly served, and (iii) when summons served but not in due time. In the first situation, which is relevant here, when it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte. The provision casts an obligation on the court and simultaneously invokes a call to the conscience of the court to feel satisfied in the sense of being “proved” that the summons was duly served when and when alone, the court is conferred with a discretion to make an order that the suit be heard ex parte. The date appointed for hearing in the suit for which the defendant is summoned to appear is a significant date of hearing requiring a conscious application of mind on the part of the court to satisfy itself on the service of summons. Any default or casual approach on the part of the court may result in depriving a person of his valuable right to participate in the hearing and may result in a defendant suffering an ex parte decree or proceedings in the suit wherein he was deprived of hearing for no fault of his. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 CPC, the case would not have proceed ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation.” 7. If only the trial court would have been conscious of its obligation cast on it by Order 9 Rule 6 CPC, the case would not have proceed ex parte against the defendant-appellant and a wasteful period of over eight years would not have been added to the life of this litigation.” 7. There can be no quarrel with the aforesaid exposition of law. However, the question is as to whether the ratio laid down therein is applicable to the facts of the present case. The record reveals that summons earlier issued by the learned Rent Controller for service of the petitioner for 31.8.2009 were received back undelivered with the report of the Process Server that despite his best efforts the petitioner could not be found. It is further reported that on enquiries made, it was revealed that the petitioner had gone out in connection with his work and it was not known as to when he could be back. Another important fact which finds mention in the report is that the premises in question were found to be locked and therefore, the summons were being returned. It is thereafter that summons for appearance were again issued for 18.8.2009, those summons were received back with the report that the petitioner had refused to accept the same and therefore, a copy thereof had been affixed on the open door of the demised premises. 8. The Process Server earlier having visited the demised premises was fully aware regarding its location and when the petitioner refused to accept the summons/notices, a copy thereof was affixed on the door of the premises, which was lying open at the relevant time. The Process Server has not made a mention of any witness in his report and it is for this precise reason that the name and address of such person has not been given in the same. It is not necessary at all given times that there would be person available to act as witness in whose presence the house is identified or in whose presence a copy is affixed and it is for this precise reason that the requirement of the rule has not been made mandatory. Therefore, in the given facts and circumstances the mere absence of endorsement of the name and address of the witness would not per se vitiate the service. 9. Therefore, in the given facts and circumstances the mere absence of endorsement of the name and address of the witness would not per se vitiate the service. 9. It cannot be disputed that the officials serving the Court processes (Process Servers) are public servants and in terms of Section 114 of the Evidence Act, there is a presumption regarding their due discharge of duties in accordance with law. 10. Another important aspect which cannot be lost sight of is that the petitioner at no stage of the proceedings has attributed any motive or malafides against the Process Server and in absence thereof, the credibility of the report so submitted cannot be impeached by him 11. Intriguingly during this entire period the petitioner has neither made any complaint against the Process Server to the higher authorities nor moves an application for examining him as a witness, which casts a grave doubt on the claim now being put forth by him. After all not only had the valuable right of the petitioner to contest the proceedings being taken away, but he had even suffered an order of eviction. Upshot of the aforesaid discussion is that there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bearing their costs.