JUDGMENT : Sureshwar Thakur, J, The petitioners herein are the landlords of premises No. 12/13 Lakkar Bazar, Shimla, in a portion whereof the respondent is a tenant. The petitioners herein filed a rent petition before the learned Rent Controller bearing No. 83/2 of 1999 against the respondent herein for the latter’s eviction from the demised premises on the grounds as enunciated therein. The learned Rent Controller on a consideration of evidence adduced on the apposite issue struck by it on the pleadings available before it partly allowed the eviction petition qua the ground of the respondent herein having fallen into the arrears of rent, however, returned findings against the petitioners herein qua the demised premises being bonafidely required for rebuilding by the petitioners. An appeal therefrom stood preferred by the aggrieved petitioners herein before the Appellate Authority, Shimla. The Appellate authority, Shimla sustained the findings of the Rent Controller on the apposite issue qua the respondent herein having fallen into the arrears of rent besides reversed the findings recorded by the Rent Controller on the issue qua the demised premises being bonafidely required for rebuilding by the petitioners. In sequel, the order of the learned Rent Controller, Shimla stood modified by the Appellate Authority. The respondent herein instituted a Civil Revision No. 180 of 2007 before this Court assailing the judgment of the Appellate Authority, Shimla whereby it accepted the appeal preferred before it by the petitioners herein. Civil Revision No. 180 of 2007 was adjudicated alongwith other petitions as stood instituted before this Court against the judgments of the Appellate Authority, Shimla. A coordinate Bench of this Court affirmed the order of the learned Appellate Authority, nonetheless it while affirming the order of the learned Appellate Authority, Shimla had imposed therein certain conditions precedent for compliance thereof by the petitioners herein for facilitating execution of the decree of eviction of the tenant/respondent herein from the demised premises. The conditions as embodied therein stand extracted hereinafter:- i) In view of the law laid down by the Hon’ble Supreme Court in the case of Harrington House School, supra, which has also been followed by this Court in a series of cases, the order(s) of eviction shall not be liable to be executed unless the landlords produce before the executing Court plans of the building duly sanctioned by the competent authority. ii) The tenants shall be entitled to the protection of the amendment carried out in Section 14 of the Act by way of insertion of a proviso to clause © to Sub-Section 3 thereof, meaning thereby that they shall have “the right to re-entry on new terms of tenancy, on the basis of mutual agreement between the landlords and the tenant, to the premises in the re-built building equivalent in area to the original premises for which he was a tenant” in accordance with law.” 2. The landlords/petitioners herein instituted an Execution Petition before the Rent Controller, Shimla claiming therein the issuance of warrants of possession against the respondent/tenant for ensuring his eviction from the demised premises. The learned Executing Court on 10.12.2013 ordered for the issuance of a notice being served upon the JD/respondent herein/tenant in the demised premises for securing the latter’s appearance before it on 25.2.2014. In pursuance to the learned Executing Court ordering for the issuance of summons being served upon the JD/respondent herein/tenant in the demised premises for securing his appearance before it on 25.2.2014, the serving official concerned proceeded to effectuate service upon the respondent herein by affixing summons on the outer door of his residential premises existing at Mahabir Niwas, Chepsli Estate, Lakkar Bazar Shimla. However the respondent/JD omitted to on 25.2.2014 record his presence before the learned Executing Court. Consequently, he was ordered to be proceeded against ex-parte, besides the learned Executing Court ordered for the issuance of warrants of possession qua the demised premises. 3. The JD/respondent herein/tenant in the demised premises thereupon proceeded to institute an application before the learned Executing Court under the provisions of Order 21 Rule 106 read with Section 94 and 151 CPC with specific averments therein of his having stood not properly served sequelling his absence before the learned Executing Court on 25.2.2014. Therein he also claimed a relief of the order of the learned Executing Court of 25.2.2014 whereby he stood proceeded against ex-parte being set aside besides of execution of warrants of possession as stood issued by it qua the demised premises being stayed. The learned Executing Court after inviting a response from the landlords/petitioners herein on the application aforesaid rendered an order in favour of the respondent herein/tenant in the demised premises. 4. The learned Executing Court after inviting a response from the landlords/petitioners herein on the application aforesaid rendered an order in favour of the respondent herein/tenant in the demised premises. 4. The landlords/petitioners herein stand aggrieved by the order of the learned Executing Court of 10.11.2014 whereby it allowed the application preferred before it under the provisions of Order 21 Rule 106 read with Section 94 and 151 CPC, by the respondent/tenant in the demised premises besides by its permitting the tenant/respondent herein to cast objections to the excitability of the order of his eviction from the demised premises on the anvil of the landlords omitting to mete compliance with the hereinbefore extracted conditions precedent for facilitating theirs obtaining warrants of possession qua the demised premises comprised in theirs not holding an approval from the competent authority for empowering them to reconstruct the building wherein in a portion thereof the respondent stands housed as a tenant under the petitioners herein. The short ground which stands urged before this Court by the learned counsel for the petitioners herein for impeaching the order of the learned Rent Controller of 10.11.2014 stands grooved in the factum of the summons carried by the serving official denoting therein the address of the respondent/tenant in congruity with his address reflected in Civil Revision No. 180 of 2007 whereat he stood served by affixation renders un-sustainable the findings recorded by the learned Rent Controller of the respondent/tenant having not stood served in accordance with law by the serving official. However, the aforesaid submission addressed before this Court by the learned counsel for the petitioners though addressed with much vigor and tenacity yet it may not apparently gain any succor rather its vigor gets sapped by an emanation of an imminent fact of the serving official, as emerging on a perusal of the hereinafter referred recitals as stand scribed by the latter on the reverse of the summons delivered to him by the learned Executing Court for effectuation of personal service through ordinary mode upon the respondent/tenant in the demised premises in as much as (i) his having therein recorded the factum of his having endeavored to effect personal service through ordinary mode upon the respondent herein on 25.2.2014, yet his endeavor proving abortive arising from his then having found his residential premises locked and his standing apprised by the local residents, of the respondent/tenant visiting his premises in the evening. The serving official though has scribed a recital on the reverse of the summons held him for effectuation of personal service upon the respondent herein through ordinary mode qua the unavailability of the respondent herein at his residence when he visited it for effectuating service upon him through ordinary mode which unavailability arose from his premises thereat being locked whereupon he stood apprised by the local residents qua his availability therein in the evening, he yet proceeded to exercise the discretion of serving him through affixation which discretion as stood vested in him under Order 5 Rule 17 CPC apparently stood exercised by him in a most capricious and whimsical manner in as much as the discretion vested in the serving official or the empowerment in him to effectuate service by affixation upon the respondent herein/addressee of the summons in derogation of his primary enjoined duty besides such substituted mode of service upon the addressee holding legal formidability peremptorily obliges him to make concerted efforts prior to his exercising the discretion aforesaid vested in him comprised in his using all due and reasonable diligence to successively discover the respondent herein/addressee of the summons at the latters residential premises which proven successive concerted efforts on his part hence unraveling the factum of his using all due and reasonable diligence to effectuate personal service upon the respondent herein through ordinary mode besides theirs provingly standing frustrated given the successive unavailability of the addressee therein would hence render validated his succeeding act of effectuating service by affixation upon the addressee/respondent herein. Tritely unless the serving official preceding his effectuating service upon the respondent herein by affixing summons on the outer door of his premises unfolds, on the reverse of the summons retained by him for retention in the office concerned of his despite concerting to by previously visiting the premises of the respondent/addressee on numerous occasions his not locating him there hence his standing disabled to personally serve him besides with a portrayal therein of there being no likelihood of the respondent herein being available within a reasonable time at his address mentioned in the summons for enabling the serving official to effect personal service upon him through ordinary mode, would constitute sustainable proven evidence of his having made concerted efforts besides his having used all due and reasonable diligence for effecting personal service upon the tenant/addressee through ordinary mode which however hence provenly stood frustrated. The aforesaid portrayals or enfoldments recorded on the reverse of the summons retained by the serving official for retention in the Office concerned preceding his affixing a copy of summons on the outer door of the residential premises of the respondent/tenant herein would render sustainable his succeeding act of his effectuating service upon the addressee/respondent herein by substituted mode comprised in his affixing a copy of summons on the outer door of the residence of the addressee/respondent herein besides would constrain this Court to conclude qua the discretion vested in the serving official to effectuate service upon the addressee/respondent herein by substituted mode in derogation to the primary mode of effectuation of personal service upon him stood exercised by him with a thorough application of mind bereft of any vice of whimsicality or caprice. However a palpable disclosure stands emanated from the scribing of recitals by the serving official on the reverse of the summons handed over to him for effectuating personal service upon the respondent herein through ordinary mode of his on his visiting the latter premises having found it locked besides his standing apprised by the neighbours of the respondent/tenant of the latter visiting his premises in the evening for effectuation of personal service upon him obviously the disclosure aforesaid is a graphic portrayal of there being every likelihood of the respondent herein being available therein in the evening for personally receiving from the serving official a copy of summons, concomitantly, hence, enjoined upon the serving official to revisit the premises of the respondent in the evening for effectuating personal service upon him through ordinary mode. However, the serving official did not revisit the premises of the respondent herein in the evening. Only in the event of the serving official having revisited the residential premises of the respondent/tenant in the evening when he was likely to be available therein for personally receiving summons from the serving official whereas whereupon on the serving official revisiting his premises his yet not locating the respondent therein for personally receiving summons from him would have ingrained his act of effectuating service upon him by affixation to stand imbued with a vigor of validation besides necessarily when a manifestation of the serving official having concerted to exercise all due and reasonable diligence despite whose exercise the respondent/tenant hence remaining personally unserved through ordinary mode would stand surfaced besides would lend redoubled vigor to the exercise of discretion by the latter in effectuating service by affixation upon the respondent/tenant. However, the serving official as evident from the material as placed on record did not make any concerted assays comprised in his performing the hereinabove act of his revisiting the premises of the respondent herein in the evening of the day when he in the morning thereof visited it for effectuation of personal service upon him. In aftermath the omission in the regard afore-stated by the serving official renders the exercise of discretion by him to effectuate service upon the respondent herein by affixation to be ridden with a vice of both caprice and whimsicality. In aftermath the omission in the regard afore-stated by the serving official renders the exercise of discretion by him to effectuate service upon the respondent herein by affixation to be ridden with a vice of both caprice and whimsicality. Dehors the above the aforesaid extracted recitals recorded on the reverse of the summons is undated for hence lending succor qua his having even or ever visited the premises of the respondent/addressee of the summons. ii)Apart therefrom the learned Executing Court had ordered on 10.12.2013 for issuance of summons being served upon the respondent/tenant, however given the fact of the recitals recorded on the reverse of the summons being undated fillips an inference of the serving official since 10.12.2013 up till 25.2.2014 omitting to take any steps for effectuating personal service upon the respondent/tenant through ordinary mode rather the aforesaid omissions also appear to be a calculated maneuver on his part to with laxity procrastinate his endeavor to personally serve the respondent/tenant up till 25.2.2014 especially to take the respondent/tenant by surprise even when he had ample and sufficient time from 10.12.2013 upto 25.2.2014 to proceed to effect personal service upon the respondent/tenant through ordinary mode. The calculated maneuver on the part of the serving official to take to effect a tainted substituted service upon the respondent herein through affixation of summons on the outer door of his residential premises also gives impetus to the inference aforesaid of his without concerting to adopt the primary or prior mode of effectuating personal service upon the respondent herein which however may have borne fruition in case he revisited his premises in the evening, he yet took to with alacrity adopt the substituted or secondary mode of effectuating service upon him through affixation. In sequel, the discretion exercised by him in his adopting the substituted mode of effecting service by affixation upon the respondent herein is manifestly a discretion exercised with gross caprice and arbitrariness. 5. The wanton caprice with which the serving official has exercised his discretion in effectuating service upon the respondent through substituted mode necessitates its being deprecated in the strongest words. 5. The wanton caprice with which the serving official has exercised his discretion in effectuating service upon the respondent through substituted mode necessitates its being deprecated in the strongest words. The factum of the affidavit sworn by the serving official before the Superintendent of the Executing Court concerned being of 25.2.2014, the very day when the respondent herein was to record his presence before the learned Executing Court is of significance wherefrom it hence can tenably be concluded of his only on the day aforesaid having proceeded to purportedly affix summons on the outer door of the residential premises of the respondent herein. Necessarily the inference aforesaid does only add vigor to an ensuable deduction of his having engineered or invented effectuation of service by way of affixation upon the tenant/respondent herein. Moreso when the names of the persons who apprised the serving official qua the factum of the respondent being available in his residential house in the evening of the day is not emanable from the recitals scribed by the serving official on the reverse of the summons nor also when it has not been concerted by the petitioners herein to lead the serving official into the witness box for enabling him to depose in corroboration qua the factum, as disclosed in the recitals recorded on the reverse of the summons of his having pasted them on the outer door of the premises of the respondent. In sequel, the pasting of a copy of the summons by the serving official on the outer door of the residential premises of the tenant is obviously a stigmatized besides a tainted service upon the respondent/tenant herein with an ensuable inference of no service as a matter of fact even by way of purported affixation of summons on the outer door of the residential premises of the respondent herein having stood effectuated upon him. Consequently, with the respondent/tenant having remained un-served even by way of substituted mode, he was tenably precluded to record his presence before the learned Executing Court on 25.2.2014. In sequel, the learned Executing Court was constrained to, within its jurisdictional domain to hence recall the orders whereby the respondent/tenant in the demised premises stood proceeded against ex-parte. Consequently, with the respondent/tenant having remained un-served even by way of substituted mode, he was tenably precluded to record his presence before the learned Executing Court on 25.2.2014. In sequel, the learned Executing Court was constrained to, within its jurisdictional domain to hence recall the orders whereby the respondent/tenant in the demised premises stood proceeded against ex-parte. In view of above, the learned Executing Court did not commit any illegality or impropriety in hence setting aside its previous order whereby the respondent herein was proceeded against ex-parte or in its staying the execution of warrants of possession qua the demised premises. 6. In sequel, the present petition is dismissed and the order of the learned Executing Court directing the recalling of the order whereby the respondent was proceeded ex-parte does not warrant interference, hence it stands maintained and affirmed. 7. However, at this stage, the learned counsel for the petitioners-landlords has contended with much vigor and vehemence before this Court of the order impugned before this Court whereby an opportunity stood afforded to the respondent for his instituting objections to the execution petition instituted by the petitioners herein before the Executing Court being legally frail stands awakened by the fact of a Coordinate Bench of this Court in CR No. 125 of 2012 as stood instituted before it by a tenant under the petitioners herein other than the respondent herein in the very same building wherein too the respondent herein is a tenant, while setting aside the order of the learned Executing Court permitting the tenant therein to seek elicitation from the landlords the duly sanctioned plans by the competent authority qua the demised premises for hence facilitating its reconstruction, had proceeded to order the executing Court to issue warrants of possession qua the tenant other than the respondent herein in the very same building under the very same petitioners herein. He also contends qua the aforesaid rendition of this Court also ousting or baulking the respondent herein to endeavor to contest the execution petition preferred by the petitioners herein before the Executing Court on the ground of the landlords/petitioners herein not extantly holding an approval from the competent authority for reconstruction of the building in a portion whereof the respondent is a tenant under the petitioners herein. He further contends of the respondent herein being disabled to hence canvas before the Executing Court of the decree of eviction qua him from the demised premises on the ground of reconstruction being unexecutable for want of approval qua it of building plans by the competent authority especially when under a rendition of a coordinate bench of this Court in CR No. 125 of 2012 the availability of the aforesaid objections, to one of the tenants in the building wherein the respondent herein is also in a portion thereof a tenant under the petitioners stood debarred from being raised. However, the aforesaid contention addressed by the learned counsel for the petitioners is stripped of its legal vigor for the following reasons:- (a) The landlords/petitioners herein having vacillated in their stands espoused before this Court in CR No. 125/2012 vis-à-vis their espousal in CR No. 9 of 2014 especially as emanable on a perusal of the latter rendition by this Court of theirs therein having permitted the retention of the demised premises as a tenant by the respondent therein, till an approval for facilitating the reconstruction of the building wherein the demised premises therein stood comprised stands accorded by the competent authority, renders the vacillations aforesaid being connotative of the petitioners herein now meteing a mere specious objection to the respondent/tenant contesting his eviction from the demised premises on the score of the petitioners/landlords being defacilitated to reconstruct the building wherein in a portion thereof the respondent herein is an occupant as a tenant under the petitioners herein arousable from the factum of theirs not holding a sanction for its reconstruction from the competent authority. Dehors the vacillation in the aforesaid regard on the part of the petitioners/landlords and its constituting theirs merely inventing a ground for seeking an ouster of the tenant/respondent herein from the demised premises also estops the petitioners/landlords to qua the respondent herein/tenant who alike the petitioner who instituted CR No. 9 of 2014 is a tenant in the very same demised premises especially wherein the landlords have permitted his occupying the demised premises as a tenant till an approval to the plans for reconstruction of the building wherein the respondent herein also stands housed therein as a tenant stands accorded by the competent authority to preclude him from claiming parity of treatment with the petitioner therein especially with the landlords waiving its being exerted or exercised qua one of the tenants in the building wherein in a portion whereof the respondent herein is also a tenant under the petitioners / land lords. The learned Executing Court while permitting the respondent to raise objections qua the tenability of an assertion in the execution petition laid before it by the petitioners herein for eviction of the tenant/respondent from the demised premises especially when it stands grooved in the factum of the petitioners / landlords being disempowered to carry forward the execution petition instituted against the respondent / tenant spurred by the factum of theirs not holding an approval for its reconstruction from the competent authority besides when the said objection is squarely constituted in the rendition of this court of 26.4.2012 wherein this court while upholding the order of eviction of respondent/tenant from the demised premises had made his eviction therefrom subject to satiation by the petitioners herein of the hereinabove extracted conditions which devolve upon the factum of the landlords/petitioners herein being empowered to obtain warrants of possession against the respondent/tenant from the demised premises only on the former purveying to the executing Court approval by the competent authority qua reconstruction of the building in a part whereof the respondent herein is housed as a tenant, hence obviously has not committed any illegality or impropriety. The fiat of the said condition is preemptory and its vigor was not amenable to any dilution unless it stood reversed by the Hon’ble Apex Court. However, the learned counsel appearing for the parties submit before this Court that the order of this Court of 26.4.2012 stands not reversed by the Hon’ble Apex Court. The fiat of the said condition is preemptory and its vigor was not amenable to any dilution unless it stood reversed by the Hon’ble Apex Court. However, the learned counsel appearing for the parties submit before this Court that the order of this Court of 26.4.2012 stands not reversed by the Hon’ble Apex Court. In sequel the findings recorded therein attain conclusivity and formidability for empowering the learned executing Court to mete compliance with the conditions precedent enunciated therein for facilitating the petitioners/landlords to obtain warrants of possession qua the demised premises from the learned Executing Court. The impugned order is maintained and affirmed. Parties through their counsel are directed to appear before the learned trial Court on 4.1.2016. The learned trial Court is directed to decide the matter within six months. All pending applications stand disposed of accordingly. Records be sent forthwith.