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2025 DIGILAW 1271 (TS)

Mohd Abdul Rasheed v. S. Mahender Singh

2025-10-23

RENUKA YARA

body2025
Order : RENUKA YARA, J. This Civil Revision Petition is filed by the petitioner/appellant aggrieved by the judgment and decree passed by the learned X Additional Chief Judge, City Civil Court, Hyderabad in C.M.A.No.81 of 2018, dated 22.09.2023, wherein, the said appeal filed under Order 43, Rule 1 (r) of CPC, has been dismissed confirming the order and decree passed in I.A.No.143 of 2017 in O.S.No.1382 of 2015, dated 03.08.2017 by the VIII Junior Civil Judge, City Civil Court, Hyderabad. 2. Heard Sri Habeeb Jaffar Bin Hasan, learned counsel for the revision petitioner. Even though notice has been served, none appeared for the respondents. 3. The brief facts of the case are that the respondents herein have filed a suit for eviction in O.S.No.1382 of 2015 and said suit was decreed ex-parte on 18.07.2016. The petitioner herein claimed that he never received summons in the suit either through Court or through post office. The petitioner learned about the suit only when bailiff of the Court came along with police to evict him and the petitioner was forcibly evicted on 13.02.2017 without giving an opportunity to contest the suit on merits. The counsel for the petitioner verified the record and found that no process form or report of the bailiff or process server and there are no return postal covers to prove that the notice is served on the petitioner i.e. the respondents have managed the Court process to get ex-parte order. In E.P proceedings, the bailiff filed a false report that the petitioner herein has refused to vacate the suit schedule property when he was shown with ex-parte decree. Therefore, police protection was granted. It is alleged that there is no process service report, no summons were served and he was set ex- parte through paper publication in I.A., but, not in the suit. The publication was made in Siyasath Urdu daily on 12.04.2015 but said paper is not circulated in the area where the petitioner resides. The petitioner is a reader of Munsif Urdu daily and as such, he never get notice about such publication and he was forcibly evicted on 13.02.2017. A suit vide O.S.No.22 of 2015 was filed against the respondents herein on the file of the XVIII Senior Civil Judge, City Civil Court, Hyderabad, wherein, I.A.No.31 of 2015 was filed and the same was allowed on merits and temporary injunction has been granted. A suit vide O.S.No.22 of 2015 was filed against the respondents herein on the file of the XVIII Senior Civil Judge, City Civil Court, Hyderabad, wherein, I.A.No.31 of 2015 was filed and the same was allowed on merits and temporary injunction has been granted. Aggrieved by the same CMA No.31 of 2015 is preferred and the same is pending. In spite of the same, the respondents have got him evicted without serving summons for eviction. 4. The contention of the petitioner is opposed by the respondents herein alleging that a notice to quit was given prior to filing of the suit to meet the requirement under Section 106 of T.P.Act, that upon receipt of the said notice, the petitioner herein filed a suit for perpetual injunction such that he shall not be evicted without following due process of law. A temporary injunction was sought and it was made absolute in favour of the petitioner. Then, suit for eviction was filed. In spite of giving several opportunities to appear before the Court, there was no appearance by the petitioner and therefore, judgment and decree were passed. Subsequently, when notices were sent in E.P., the petitioner herein refused and also protested execution of warrant and therefore, police protection was granted and the schedule property is delivered. It is further submitted that the I.A to set aside the ex-parte decree is not maintainable as the same is time barred and an application filed without a petition under Section 5 of LIMITATION ACT is barred. Upon considering the case of both the parties, the learned VIII Junior Civil Judge, City Civil Court, Hyderabad dismissed the I.A filed to set aside the ex-parte decree. Aggrieved by the same, CMA No.81 of 2023 was filed. The learned Appellate Court after considering the rival contentions dismissed the CMA leading to filing of the present revision petition. 5. In grounds of revision, it is pleaded that there is an error committed by both the Trial Court and the Appellate Court by not allowing the petitioner herein to contest the case on merits. The learned Appellate Court after considering the rival contentions dismissed the CMA leading to filing of the present revision petition. 5. In grounds of revision, it is pleaded that there is an error committed by both the Trial Court and the Appellate Court by not allowing the petitioner herein to contest the case on merits. There is failure to appreciate the fact that when process fee itself is not paid, notices were not served either through Court or post office before paper publication was made in the suit but not in the I.A. The learned Appellate Court has not considered the points raised by the petitioner with respect to misuse of process of Court and therefore, contended that the impugned orders are liable to be set aside. 6. The learned counsel for the revision petitioner argued that summons were not served in the suit as process fee itself was not paid. There is no process server report to prove service of summons on the petitioner. Also, summons were not served through post. When the summons were not served and there is no report, the Trial Court ordered for service of summons through paper publication and said publication was issued in Siyasath Urdu daily which is not circulated in the area in which the petitioner resides. Further, the petitioner reads Munsif Urdu daily newspaper but not Siyasath Urdu daily newspaper. Therefore, there was no occasion for the petitioner to know about the suit for eviction filed by the respondents. In that context, an ex-parte decree granting eviction was passed and an E.P was filed. 7. In said E.P also, notices were not served but a false report is filed by the bailiff to the effect that the petitioner opposed the execution of warrant and therefore, subsequently with the aid of police, the eviction warrant was executed i.e. the petitioner herein was evicted from the suit schedule property with the help of police. Aggrieved by the ex-parte decree dated 18.07.2016 passed in O.S.No.1382 of 2015, the petitioner herein filed I.A.No.143 of 2017 to set aside the same. When said I.A was dismissed, CMA No.81 of 2023 is filed and the said CMA is also dismissed without considering the lapses that occurred in non-service of summons and notices on the petitioner in the suit as well as the EP. 8. When said I.A was dismissed, CMA No.81 of 2023 is filed and the said CMA is also dismissed without considering the lapses that occurred in non-service of summons and notices on the petitioner in the suit as well as the EP. 8. In that context, the learned counsel for the revision petitioner relied upon the judgment of the Hon’ble Supreme Court of India in case between Neerja Realtors Private Limited v. Janglu (Dead) through legal representative, (2018) 2 SCC 649 , wherein, it is held as follows: “substituted service under Order 5, Rule 20 of CPC is an exception to normal mode of service – For ordering substituted service under said provision, court is required to be satisfied that: (i) there is reason to believe that defendant is keeping out of the way for purpose of avoiding service, or (ii) for any other reason, the summons cannot be served in ordinary way – Thus, while making that order, court must apply its mind to requirements under Order 5, Rule 20 of CPC and indicate in its order due consideration of provisions contained in Order 5, Rule 20.” 9. It is the case of respondents before the Trial Court and the Appellate Court that summons were sought to be served but due to the avoiding technics adopted by the petitioner herein, ultimately, summons/notices were served through newspaper in Siyasath Urdu daily newspaper. Further, when notice was sought to be served in the E.P., the petitioner herein refused to receive the same and therefore, the E.P was disposed of ordering eviction. When there was an attempt by the bailiff to execute the warrant, the petitioner opposed the same and therefore, police aid was sought and when the Trial Court granted police aid, the petitioner herein was evicted from the rented premises. There is absolutely no irregularity in serving of summons or notices and it is the petitioner who avoided to receive the summons and notices. 10. Learned counsel for the revision petitioner further submitted that the record has to be summoned from the Trial Court to ascertain the true facts about the tricks played by the respondents to avoid serving of summons for obtaining ex-parte decree. Further, the petitioner denied having refused to receive notice in the E.P. 11. 10. Learned counsel for the revision petitioner further submitted that the record has to be summoned from the Trial Court to ascertain the true facts about the tricks played by the respondents to avoid serving of summons for obtaining ex-parte decree. Further, the petitioner denied having refused to receive notice in the E.P. 11. When the order passed by the Trial Court in I.A.No.143 of 2017 is perused, it shows that the Trial Court considered the fact that a suit for perpetual injunction was filed by the petitioner herein to prevent his dispossession without following due process of law and it is held that the said suit is filed only when there was the suit for eviction filed by the respondents herein. In this backdrop, it is held that the petitioner has knowledge about the suit for eviction and the same is evident from the pleadings of the I.A. It is also held that the notice served in the E.P was refused as per the record and no rejoinder is filed about not receiving notice in the E.P. In the circumstances, it is held that sufficient cause is not shown to set aside the ex-parte decree and the I.A was dismissed. 12. When the same issue was examined by the learned Appellate Court, the docket proceedings were examined in detail as the main issue was about non-service of summons through Court and post office followed by substituted service of summons/notice through newspaper publication. As per record, newspaper publication was made in Siyasath Urdu daily newspaper on 12.04.2015. The learned Appellate Court examined the docket proceedings in the suit and came to the conclusion that the matter was posted from time to time for issuance of fresh summons and filing the report but when there was no service, substituted service was ordered. It is further observed that the address of the petitioner is the same which is mentioned in O.S.No.1382 of 2015 and the CMA. Since the address is the same, the learned Appellate Court came to the conclusion that the petitioner avoided to receive summons which is the version presented by the respondents. Further, it is observed that it is not the case of the petitioner that summons were ordered to incorrect or insufficient address to believe that he had no knowledge about the suit proceedings. Further, it is observed that it is not the case of the petitioner that summons were ordered to incorrect or insufficient address to believe that he had no knowledge about the suit proceedings. Further, the contention of the petitioner that there is no circulation of Siyasath Urdu daily newspaper in the area is disbelieved and the CMA has been dismissed. 13. The pleadings and the orders passed by the Trial Court and Appellate Court show that there is an issue about serving of summons in the suit for eviction filed by the respondents. To ascertain the same, the petitioner herein urged this Court to call for the records. However, in view of the concurrent findings of both the Trial Court and the Appellate court about the petitioner having knowledge about filing of the suit, this Court is not inclined to call for the record. It is to be noted that that the respondents herein have got issued a notice under Section 106 of T.P.Act demanding the petitioner to vacate the rented premises. When said notice was received, the petitioner herein filed suit in O.S.No.22 of 2015 seeking perpetual injunction to restrain the respondents from dispossessing him forcibly without following due process of law. In said context, the suit for eviction was filed by the respondents herein. In this backdrop, it is unrealistic to believe that the petitioner had no knowledge of filing of the eviction suit. Therefore, this Court is not inclined to differ with the concurrent findings given by both the Trial Court and Appellate Court. Though the orders passed do not refer to the process server reports, however, the fact remains that the address of the petitioner is the same in both the suits and the CMA. 14. The second important point to be noted is that notice was served in the E.P. There is a refusal by the petitioner herein and there is a bailiff report to said effect. To this extent, there can be no dispute about the presence of a bailiff report about the petitioner herein refusing to receive the notice. Only when there was refusal to receive the notice, the Execution Court/Trial Court proceeded to issue warrant of eviction. Even at that stage, when the warrant was sought to be executed, there was resistance by the petitioner herein i.e. the petitioner did not vacate the property. 15. Only when there was refusal to receive the notice, the Execution Court/Trial Court proceeded to issue warrant of eviction. Even at that stage, when the warrant was sought to be executed, there was resistance by the petitioner herein i.e. the petitioner did not vacate the property. 15. When the petitioner was facing eviction and when the bailiff visited the property, the petitioner ought to have approached the Trial Court to grant stay or ought to have filed I.A under Order 9, Rule 13 of CPC to set aside the ex-parte decree and judgment. Instead, the petitioner herein kept silent until another Interlocutory Application was filed seeking police aid and the same was allowed granting police aid followed by payment of process fee for execution of warrant of delivery of immovable property and was forcibly evicted with the help of police. 16. From the time of bailiff visiting the rented premises to execute the warrant till the petitioner was evicted with the aid of police, there is inaction on the part of the petitioner. As observed by the Trial Court, only after eviction was effected, the petitioner has come up with the petition to set aside the ex-parte judgment and decree which shows either laches or intentional inaction. In view of the sequence of events, no fault can be found with the finding given by the Trail Court and the Appellate Court about the petitioner having knowledge about the suit for eviction. In view of the foregoing discussion, this Court is of the opinion that there are no grounds to interfere with the impugned judgment passed by the learned Appellate Court and the revision is liable to be dismissed. 17. Accordingly, the Civil Revision Petition is dismissed confirming the impugned judgment and decree passed by the learned X Additional Chief Judge, City Civil Court, Hyderabad, in C.M.A.No.81 of 2018, dated 22.09.2023. No costs. Pending miscellaneous petitions, if any, shall stand closed.