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Rajasthan High Court · body

2021 DIGILAW 696 (RAJ)

Vimala Jain v. Arun Kumar Jain

2021-03-25

PRAKASH GUPTA

body2021
JUDGMENT 1. This writ petition has been filed by the petitioner-non applicant (for short, 'the non applicant1) under Article 227 of the Constitution of India against the order dated 25.11.2019 passed by the Rent Tribunal, whereby the application filed by the non applicant under Order 9 Rule 7 read with Section 151 CPC has been dismissed. 2. Facts of the case are that the respondent-applicant (for short, 'the applicant1) filed an eviction petition against the non applicants. On 2.1.2013, notices were issued to the non applicants. On 8.1.2013, the process server reached at the residence of non applicant no.4, but when she was not found at the given address and her daughter in law refused to accept the notices, the process server said to have affixed the notice at the outer door of opened house of non applicant no.4 in the presence of witnesses. In this view of the matter, the Rent Tribunal vide its order dated 15.1.2013 treated service of notice on non applicant no. 4 as sufficient and due to her non appearance, ex-parte proceedings were initiated against her on the same date. The non applicant no.4 filed application under Order 9 Rule 7 read with Section 151 CPC for setting aside the ex-parte proceedings, which came to be dismissed by the Rent Tribunal vide its order dated 25.11.2019. Hence, this writ petition. 3. Learned counsel for the non applicant submits that neither proper service was effected on the non applicant nor any notice of the Tribunal was received by her. For this reason, on 15.1.2013, non applicant could not appear before the Tribunal when ex-parte proceedings were drawn against her. He further submits that on 13.3.2019, the non applicant came to know about initiation of ex-parte proceedings from one Anurag Patni. As soon as the non applicant came to know about initiation of ex-parte proceedings, she engaged an advocate and filed an application for setting aside the ex-parte proceedings. However, the Rent Tribunal erred while dismissing the same vide order dated 25.11.2019. Hence, the impugned order is liable to be quashed and set-aside. 4. On the other hand, learned counsel for the applicant defended the impugned order. He submits that ex-parte proceedings were drawn against the non applicant on 15.1.2013, but the application for setting aside the ex-parte proceedings was filed in the year 2019 i.e. after expiry of about 6 years. Hence, the impugned order is liable to be quashed and set-aside. 4. On the other hand, learned counsel for the applicant defended the impugned order. He submits that ex-parte proceedings were drawn against the non applicant on 15.1.2013, but the application for setting aside the ex-parte proceedings was filed in the year 2019 i.e. after expiry of about 6 years. He further submits that no reasonable justification was given for non-applicant's non appearance before the Rent Tribunal for such a long period of 6 years, despite the fact that she was having knowledge in this regard. He further submits that since the non applicant was not present at the residence and her daughter in law refused to accept the notice, the notice was affixed at the outer door of non-applicant's residence in the presence of two witnesses. The Rent Tribunal after taking into consideration all aspects of the matter, has rightly dismissed the application vide order dated 25.11.2019, with which no interference is required by this Court. In support of his arguments, he has relied on the judgment passed by the Coordinate Bench of this Court in the case of Nawal Kishore Bhageria Versus Additional District Judge NO. 7 (S.B. Civil Writ Petition No. 6460/2012; decided on 21.11.2012). 5. Heard. Considered. 6. Order 9 Rule 6 CPC deals with the procedure when only plaintiff appears. 7. Sub-clause (c) of Order 9 Rule 6 CPC provides the procedure when summons are served, but not in due time. It envisages thus: (c) If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. 8. In the case of Sushil Kumar Sabharwal vs. Gurpreet Singh & Others reported in (2002) 5 SCC 377 , Hon'ble Apex Court has held as under:- "7. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read thus: "17. Rules 17 and 18 of Order 5, C.P.C. which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the serving officer, read 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 acknowledgment, 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 of some other conspicuous part of the house in which the defendant ordinarily reside 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. 18. Endorsement of time and manner of service.-The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 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 witnesses 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 wherever 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. Incidently, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing. 9. The appellant has himself appeared in the witness box and deposed on oath that no summons was tendered to him by any process server of the Court. It is a case of oath against oath. In view of the facts which we have noticed here-in-above clearly the oath of the appellant was more weighty than the oath of the process server. In the ordinary course of events, the court of facts should have discarded the statement of the process server and believed the statement of the appellant. 10. The learned counsel for the landlord-respondent submitted that there is an interpleader suit filed by the appellant because there was a dispute between the heirs of the original landlord who unfortunately died and his widow and the grandsons (who are the respondents herein), each of the two was claiming itself to be the landlord and entitled to recover rent setting up a will in its favour. The appellant has admitted in the plaint therein that he was aware of the pendency of the suit filed by the respondent in the court of the Rent Controller, Amritsar. In fact, this admission of the appellant has weighed heavily with the High Court which has opined that even if the summons was not duly served, the appellant was aware of the pendency of the suit and, therefore, the application under Order 9, Rule 13 C.P.C. did not have any merit. 11. The High Court has over looked the second proviso to Rule 13 of Order 9 C.P.C, 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 above said. Then the present one is not a case of mere irregularity in service of summons; on the facts 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 utilise. 12. The provision contained in Order 9 Rule 6 of the C.P.C. 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 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 obligations on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved1 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 of the C.P.C, the case would not have proceeded 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, (emphasis supplied)" 9. From a perusal of the impugned order, it is evident that earlier when the notice issued to the non applicant was not served, fresh notice was directed to be issued for service, which was issued on 2.1.2013. Due to refusal to accept the notice by the alleged daughter in law of the non applicant, the said notice was said to have been affixed at the outer door of the non applicant's residence by the process server on 8.1.2013 and on account of non appearance on 15.1.2013 service was treated as sufficient and ex-parte proceedings were initiated against her on the same day. Thus, within seven days from the purported date of service i.e. 8.1.2013, ex-parte proceeding was drawn against the non applicant. 10. Thus, within seven days from the purported date of service i.e. 8.1.2013, ex-parte proceeding was drawn against the non applicant. 10. Neither any identification was made by any person that the woman who refused to accept notice was the non applicant's daughter in law nor there is anything on record to show that the process server had recorded his satisfaction, as provided under Order 5 Rule 15 and 17 CPC. In this way, while effecting service of notice on the non applicant, compliance of mandatory provision of Order 5 Rule 15 and 17 CPC was not made by the serving officer. 11. As per the judgment passed by the Hon'ble Apex Court in the case of Sushil Kumar Sabharwal (supra), it is the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant consideration for proceeding ex-parte. 12. Even the witnesses in whose presence, the notice was affixed on the outer door of the non applicant's residence, are of Goyal Colour Lab, Jaipur, where the non applicant is a resident of Munshimahal Garden, Jaipur. Even if there was any delay in filing the application under Order 9 Rule 7 CPC, same could be compensated by way of cost. Thus, the Rent Tribunal is found to have committed error while passing the impugned order. 13. The judgment passed by the Coordinate Bench of this Court in the case of Nawal Kishore Bhageria (supra), and relied upon by the learned counsel for applicant, does not apply to the instant case as in the said case the notice was accepted by the daughter in law and presumption was drawn under Section 114 of the Evidence Act, but in the instant case, notice was not accepted by the alleged daughter in law of the non applicant. 14. For the aforesaid reasons, the writ petition is allowed and the order dated 25.11.2019 passed by the Rent Tribunal is set-aside subject to payment of cost of Rs. 25,000/-, out of which Rs. 12,500/- shall be paid to the applicant and rest Rs. 12,500/-will be deposited in Rajasthan State Legal Services Authority, Jaipur within two weeks from today, failing which the application under Order 9 Rule 7 CPC shall be deemed to have been dismissed. 25,000/-, out of which Rs. 12,500/- shall be paid to the applicant and rest Rs. 12,500/-will be deposited in Rajasthan State Legal Services Authority, Jaipur within two weeks from today, failing which the application under Order 9 Rule 7 CPC shall be deemed to have been dismissed. In the event of cost, as aforesaid, it paid / deposited by the non applicant, the application under Order 9 Rule 7 read with Section 151 CPC shall be deemed to have been allowed and the ex-parte proceedings drawn against the non applicant shall be deemed to have been set-aside. The Rent Tribunal shall grant only one opportunity to the non applicant to file reply within a week thereafter. 15. However, taking into consideration the fact that the original petition is pending before the Rent Tribunal since the year 2012, the Rent Tribunal is directed to decide the said petition within three months from the date of date of receipt of certified copy of this order, in accordance with law.