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Himachal Pradesh High Court · body

2015 DIGILAW 363 (HP)

Puran Dutt v. Salil Seth

2015-04-17

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This petition is instituted against the order dated 11.11.2013 rendered by the learned Rent Controller, Shimla in case No. 284-6 of 2012. 2. “Key facts” necessary for the adjudication of this petition are that respondents filed an eviction petition under section 14 of the H.P. Urban Rent Control Act against the petitioner. Rent Controller issued noticed on 6.6.2006 to the petitioner for 21.8.2006. On 21.8.2006, Process Server gave report dated 19.6.2006 stating therein that the premises were locked and the petitioner has retired and has started living in his village. The matter was again taken up on 21.8.2006 and fresh summons were directed to be issued for 29.9.2006. The Process Server affixed the copy of the summons on the door of the petitioner on 25.9.2006. Thereafter, petitioner was proceeded ex parte on 29.9.2006. Rent Controller passed the eviction order against the petitioner on 28.12.2006. He has returned specific findings that the premises in question have become unfit and unsafe for human habitation and the premises were bona fide required by the respondents for building and re-building, which could not be carried out without the premises being evicted by the tenant. Respondent No.1 Salil Seth has appeared as PW-1 and Vivek Karol has appeared as PW-2. He has proved report Ex.PW-2/A. 3. Petitioner filed an application under order 9 rule 13 read with section 151 of the Code of Civil Procedure for setting aside ex parte order dated 28.12.2006. The application was contested by the respondents. Rent Controller dismissed the application on 11.11.2013. The specific case put up by the petitioner before the Rent Controller was that he has received the notice of Execution Petition No.40/2012 and prior to this, he had no knowledge about the ex parte order dated 28.12.2006. 4. It is evident from the facts enumerated hereinabove is that the notice was affixed on the door of the premises in question. The service has been effected upon the petitioner as per the provisions of order 5 rules 17 and 20 of the Code of Civil Procedure. Since the petitioner could not be served by ordinary process, he was required to be served by way of affixation of summons. 5. The service has been effected upon the petitioner as per the provisions of order 5 rules 17 and 20 of the Code of Civil Procedure. Since the petitioner could not be served by ordinary process, he was required to be served by way of affixation of summons. 5. In the present case, petitioner was absent at the time of service and there was no likelihood of his being found since after his retirement, he had started living in his village and no one was present there to accept the service. The affixation of summons has been ordered after the respondents despite taking all due diligence could not find the petitioner and there was no person at whom service could be effected. It was also not a case of temporary absence of the petitioner. Process Server has assigned the reason under which he has affixed the summons on the outer door of the premises in question. He has also stated that no witness was present on the spot on 25.9.2006. 6. Mr. G.D. Verma, learned Senior Advocate, has also argued that even assuming that the copy of notice was affixed on the outer door but the same was not affixed in the court house, as per order 5 rule 20 of the Code of Civil Procedure. 7. Their Lordships of the Hon’ble Supreme Court of India in The Commissioner of Income-Tax, Punjab, Jammu and Kashmir and Himachal Pradesh vs Daulat Ram Khanna, AIR 1967 SC 1552 have held that sub-rule (1) of Rule 20 of order 5 of the Code of Civil Procedure prescribes the manner in which the Court may follow and this manner consists of two acts: (1) affixing a copy of the summons in the court house, and (2) affixing it in some conscious part of the residential house or the business premises of the defendant. It is for the Court, which mode is to be adopted. Their Lordships have held as under: 9. In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. Their Lordships have held as under: 9. In our view, here is great deal of force, in what Mr. Sen urges. It seems to us that the last ten words in sub-r. (1) of R. 20, do confer a discretion on the Court to adopt any other manner of service. The sub rule prescribes one manner which the Court may follow and this manner consists of two acts; (l) affixing a copy of the summons in the Court house, and (2) affixing it in some conspicuous part of the residential house or the business premises of the defendant. If the High Court were right we would expect that the word "also" would be repeated and inserted between the word "or" and "in" in the last ten words. The alternative manner which the Court decides to adopt for serving must of course be such as gives notice to the person to be served.” 8. Learned Single Judge of Punjab & Haryana High Court in Janta Sirap Co. v. Murti Shri Raghunath Ji Maharaj, 1996 (49) RCR 117, has held that report of process server is public document and there is no reason for Rent Controller to disbelieve the report of Process Server. Learned Single Judge has held as under: “10. Second service was effected by Bodh Raj Process-server on 5.2.1990 but he is not examined by the petitioner-tenant. His report is dated 5.2.1990. This is a public document. There was no reason before the Rent Controller not to believe this report. If Bodh Raj would have been examined, he would have proved whether alongwith summons copy of the eviction petition was accompanied or who got the tenant identified or whether he himself has identified the tenant. Without examining Bodh Raj tenant-petitioner can not be allowed to raise doubts about this public document. Lastly, even after this service, the tenant did not appear before the lower Court and finally service was effected through munadi by the order dated 16.7.1990, which was effected on 18.5.1990 by the Process-server Kirpal Singh, who also filed his report. About this report also, the tenant-petitioner has raised the same allegations that there is no mention that copy of the eviction petition was attached with it or there is no mentioned as to who identified the tenant and it is not attested by any witness. About this report also, the tenant-petitioner has raised the same allegations that there is no mention that copy of the eviction petition was attached with it or there is no mentioned as to who identified the tenant and it is not attested by any witness. If Kirpal Singh would have been examined, he would have proved all these things. Without examining him, such doubts cannot be raised against his report. This may be a very weak type of evidence, but in the eye of law, it ia mode of service and once if is effected and the tenant does not appear, the Court has jurisdiction to proceed ex parte against such an erring party. Thus, it is apparent that the tenant-petitioner was served on 5.2.199 and again on 18.5.1990, but he declined to appear in the Court. 9. In the instant case also, the Process server has opined that doors were locked and he has affixed the summons on the outer door of the house. 10. Their lordships of the Hon'ble Supreme Court have in Narender v. Pradeep Kumar, 2005 (1) RCR (Rent) 549, have held that when tenant not appeared despite service and he did not file any appeal and ex parte order has become final in such a situation High Court can not set aside ex parte order in exercise of powers under Article 227 of the Constitution of India. Their Lordships have held as under: [4] We have heard learned counsel for the parties and have also gone through the order of the learned single Judge of the high Court The first and foremost point is when the summons were served on the respondent and he did not appear, he has to thank himself for serious lapse on his part both learned Additional Rent Controller as well as the learned Rent Control Tribunal have found that the summons were served by registered post with acknowledgment due as well as through the process of the court Despite that the respondent has chosen not to put in appearance. Therefore, there was no option left on the part of the Additional Rent Controller but to proceed against the respondent It examined the ex parte order on merit and held that the plaintiff has successfully proved his case under Section 14 (1) (h) of the Act It was also held that an application for setting aside the ex parte decree was filed, but that application was dismissed on march 5, 2003. The respondent did not take up this matter before the higher forum and felt satisfied with the order dated March 2003 Dismissing his application for setting aside the ex parte order under Order ix Rule 13 of the Code of Civil Procedure therefore, the ex parte decree passed by the learned Additional Rent Controller became final Against this order of the Tribunal, a writ petition under Article 227 of the constitution was filed and the learned single judge only felt persuaded to remana the case back to the Additional Rent Controller for disposal We fail to understand how can learned single Judge exercise extraordinary jurisdiction under Article 227 for the benefit of a person who himself has not pursued his application under Order IX Rule 13 of the Code of Civil Procedure which was dismissed The Rent Control Tribunal both on facts and law has found that the view taken by the Additional Rent Controller is correct as the wife of the tenant-respondent has purchased a flat and they have alternative accommodation We do not see any ground for giving this latitude to the respondent We are of the view that the view taken by the learned single Judge of the High Court appears to be not sustainable in view of the concurrent finding by the courts below i. e. the Additional Rent controller as well as the Rent Control Tribunal no reasons are disclosed in the order of the High Court for holding that the alternative accommodation acquired was not for residential purpose We do not see any reason for the High Court to have interfered with the matter Hence we allow this appeal and set aside the impugned order dated July 23 2004 passed in Civil miscellaneous Mam No 328 of 2003 by the high Court of Delhi and affirm the orders passed by the Additional Rent Controller as well as the Rent Control Tribunal. There shall be no order as to costs. 11. There shall be no order as to costs. 11. Petitioner has failed to show sufficient reasons for setting aside the ex parte order. There is neither any illegality nor any perversity in the order dated 11.11.2013 passed by the Rent Controller. 12. Consequential, there is no merit in the petition and the same is dismissed. Pending applications, if any, are also disposed of. No costs.