Diesel (India) vs Krishnamurthy and Others

B.S. Patil, J—This revision petition is filed under Section 18 of the Karnataka Small Cause Courts Act challenging the order dated 26.06.2015 passed dismissing Misc. No. 220/2014.

Misc. No. 220/2014 was filed by the revision petitioner under Order IX Rule 13 CPC seeking to set aside the judgment dated 30.08.2014 passed in S.C. No. 1164/2011 with a prayer to restore the said suit for fresh consideration on merits.

Respondents herein are the legal representatives of the original owner and the landlord of the premises bearing No. 2 (Old No. 2), Lalbagh Fort Road, Bengaluru City. They had filed suit O.S. No. 8236/2008 before the City Civil Court seeking ejectment of the defendant -revision petitioner herein from the suit premises contending that the revision petitioner was the tenant in possession of the premises. In the said case, revision petitioner had entered appearance, engaged an Advocate and had filed written statement. The said case was later on transferred to the Small Cause Court holding that it was a small cause court which had jurisdiction and not the City Civil Court. The same was thereafter renumbered as S.C. No. 1164/2011.

According to the revision petitioner, after the matter was transferred to the Small Cause Court, no summons or notice was served on the revision petitioner - tenant regarding the proceedings and therefore, revision petitioner had no opportunity to appear before the Small Cause Court and contest the proceedings. It is further urged that Small Cause Court without ensuring due service of summons on the revision petitioner - tenant proceeded to place the tenant ex-parte and passed an ex-parte decree dated 30.08.2014. Revision Petitioner, having come to know about the said decree passed ex-parte, filed Misc. No. 220/2014 seeking to set aside the ex-parte decree.

Respondents herein appeared and contested Misc. No. 220/2014 filed by the revision petitioner. They urged that steps had been taken in the Small Cause case for service of summons, both through Court and also through post and the summons sent through the Court were returned as ''refused'', whereas notice sent by way of Registered Post Acknowledgment Due was not received, despite intimation delivered and therefore, the Small Cause Court rightly proceeded in the matter placing the revision petitioner - tenant ex-parte.

Before the Small Cause Court in Misc. No. 220/2014, the revision petitioner examined himself as P.W. 1 and produced two documents. In support of the case of the landlord - respondents herein, Sri P. Jayaprakash -respondent No. 5 herein was examined as R.W. 1 and one K. Nagaraj, Court bailiff was examined as R.W. 2 and produced and marked Exs. R1 to R5a. The Small Cause Court, on consideration of the evidence on record, both oral and documentary, has come to the conclusion that the suit summons returned with shara of the bailiff and the postal covers returned with shara of the postman disclose that the attempts made to effect service on the tenant of the summons/notice issued by the Court did not fructify as the summons were refused and the postal cover sought to be delivered was not received, despite intimation given and therefore, there was due service of notice and hence, it has proceeded to place the revision petitioner ex-parte. In addition, the Small Cause Court has also referred to the fact that the revision petitioner herein had been represented in the suit earlier filed in O.S. No. 8236/2008 and had contested the case, that admittedly, he was aware of the transfer of the case from the City Civil Court to Small Cause Court and therefore, in this background, refusal to receive the suit summons and refusal to accept the postal cover given despite intimation were to be examined and have to be treated as deemed to have been duly served on the revision petitioner and the revision petitioner had all knowledge of the proceedings pending before the Small Cause Court.

Learned counsel for the revision petitioner submits taking me through the provisions contained in Order V Rule 17 CPC that the procedure provided therein has not been complied with, inasmuch as copy of the summons was not affixed on the conspicuous part of the house in which the revision petitioner resided or carried on business and therefore, it has to be held that there was no due service of summons. He further points out that mere delivery of intimation by the postman is not sufficient to hold that due service has been effected on the revision petitioner. It is also his contention that the proceedings before the Small Cause Court were not at all maintainable because the Civil Court would not derive jurisdiction if the Rent Act is applicable. In this regard, he has placed reliance on the judgment in the case of Devasahayam (D) by LRs. Vs. P. Savithramma and Others, AIR 2006 SC 779 : (2005) 5 CTC 52 : (2005) 8 JT 361 : (2005) 7 SCC 653 : (2005) 3 SCR 255 Supp : (2005) AIRSCW 6406 : (2005) 6 Supreme 698 .

Learned counsel for the respondent - landlords takes me through the pleadings, deposition of the parties and the documents, particularly Exs. P2 & P3 to contend that all efforts made to effect service on the revision petitioner were frustrated because of the conduct of the revision petitioner in avoiding service of notice. It is contended by him that even as per the admitted version of the revision petitioner - tenant, he was aware of the transfer of the proceedings from the City Civil Court to the Small Cause Court and was in touch with his Advocate, despite the same he has not made any efforts to find out the progress of the case before the Small Cause Court and has indeed avoided to appear before the Court despite service/deemed service of summons and notice. Therefore, it is contended that the conduct of the revision petitioner - tenant demonstrates that he is interested only in protracting the proceedings.

I have heard the learned counsel for both parties and on careful perusal of the pleadings, evidence on record and the order under challenge, I find that the evidence of R.W. 2 - Nagaraj, who is a serving official of the Court/Court Bailiff clearly demonstrates that he had visited the place of business of the revision petitioner and sought to serve the suit summons, but the person incharge of the office refused to receive the suit summons. Refusal has been recorded in the suit summons which is produced and marked as Ex. R1. Ex. R2a is the signature of Nagaraj, Court Bailiff. It has come in the evidence of P.W. 1 that the address to which the summons was addressed was the address of place of business of the revision petitioner. He has admitted that during working hours, his employees would be there in the office. It is not his case that summons was not sought to be served on the person who was present in the premises at the time when R.W. 2 visited the place and sought to serve the summons.

In addition, as can be seen from Ex. R3, postal cover which has been sent by way of Registered Post Acknowledgment Due to the address of the revision petitioner - tenant, though repeated intimation was delivered by the postman to the addressee, the postal cover was not received. These things have to be examined in the background of the fact that the revision petitioner had entered appearance in O.S. No. 8326/2008. He had contested the case by filing written statement and admittedly, he was aware of transfer of this case from the City Civil Court to Small Cause Court.

Looked in this background, it has to be stated that despite due knowledge of the pendency of the proceedings before the Small Cause Court, despite deemed service of notice, revision petitioner has deliberately and intentionally abstained from participating in the proceedings before the Small Cause Court. Therefore, the order passed by the Court below placing the revision petitioner - tenant ex-parte and proceeding to pass the ex-parte decree cannot be termed as one passed without issuing due notice to the revision petitioner tenant.

The order passed by the Court below in Misc. No. 220/2013, therefore, does not suffer from any illegality. Contention urged by the learned counsel for the revision petitioner stating that Order V Rule 17 CPC has not been complied with is not apposite having regard to the facts and circumstances and the repeated attempts made for effecting service on the revision petitioner tenant which has been successfully avoided by him and also in the light of the fact that admittedly he was aware of the transfer of proceedings from the City Civil Court to the Small Cause Court.

The judgment in the Devasahayam''s case referred to supra has no application for considering the question raised in this revision petition which is confined to the legality or correctness of the order passed in the Misc. No. 220/2013. Hence, the revision petition being devoid of merit is dismissed.