Girdhari Lal vs Ajay Kumar and anothers

S.P. Goyal, J.—The petitioner was ejected from the shop in dispute on December, 16 1979 in execution of the ex parte order dated February 5, 1979. He, therefore, moved this application on the next day for getting aside the said order alleging that the same had been secured on false and baseless report and that no summons of the court was ever presented to him nor he refused to accept any. The respondent opposed the application and controverted the averments made therein. The learned Rent Controller after recording evidence of the parties declined the prayer holding that the petitioner had refused to accept service and the application was barred by limitation. Aggrieved thereby, the tenant has come up in this revision.

The petition for ejectment was registered on July 30, 1978 and notice ordered to be issued to the tenant for September 11, 1978 through ordinary process as well as registered post. No summons was, however, sent through registered post. On the usual summons, Process Server Mangat Ram made a report that the petitioner has refused to accept service and the copy of the petition was pasted at the outer door of the shop on September 8, 1978, i.e. two days prior to the date fixed in the case. On the basis of this report, ex parte proceedings were taken against the petitioner and after recording statement of the Mukhtiar of the respondent-ejectment order passed on February 5, 1979.

In support of the application for setting aside the ex parte ejectment order, the tenant appeared as his own witness and the respondent examined her Mukhtiar, the attesting witness of the report Sat Parkash R.W.4 and two other persons R.W. 2 and R.W.3. The Rent Controller accepted the statement of the witnesses produced by the respondent without taking into consideration the attending circumstances, the probabilities and any critical analysis. The finding recorded is, therefore, highly perverse and improper.

As would be evident from the facts and circumstances mentioned hereinafter, the conduct of the Mukhtiar of the landlord in securing the ejectment order and possession of the shop in dispute was nothing short of fraud and abuse of the process of the Court. The practice of getting exparte judgments and decrees through the means of false reports of refusal of service was becoming very frequent and in order to avoid this mischief, the Legislature introduced Rule 19-A in Order 5, Civil Procedure Code, making it mandatory on the court to issue summons by registered post acknowledgement due in addition to the ordinary manner of issuing summons. In the present case, although the Rent Controller ordered the summons to be also issued through registered post but the landlord never supplied registered covers and no summons was consequently sent through post. This was very significant circumstance indicating the intention of the respondent from the very beginning to adopt a device for securing ex parte ejectment order. The learned Rent Controller ignored this circumstance with the observation that as the provision of the CPC did not apply to the proceedings before the Rent Controller the non-sending of the summons through registered post was of no consequence. He, however, completely forgot that the Rent Controller had in fact ordered the summons to be sent through registered post as well and once it had been so ordered the Rent Controller was bound to issue summons through registered post before ordering ex parte proceedings against the tenant.

The manner in which the warrant of ejectment was executed further supports the view that the respondent had secured the ex parte order in connivance with the process server and on the basis of the false report. Though the ejectment order had been passed on February 5, 1979 but the execution application was moved more than two months thereafter on April 27, 1979. The premises in dispute is a shop and the business was being carried on there in the usual manner which is evident from the report of the process server on the summons but strangely the report was got made on the warrant from the bailiff that possession may be allowed to be delivered by breaking open the lock. The Rent Controller without applying his mind accepted this prayer and passed the order accordingly on May 26, 1979. Thereafter, the case was adjourned for non-execution of the warrant on several dates and ultimately on December 16, 1979, the possession was delivered by breaking open the lock. This day being a Sunday was proposely chosen because the shop was likely to be closed on that day and the possession could be taken in the absence of the tenant. Even if, the tenant may have come to know as it had in fact happened, he could not do anything because the court was closed on that day. It is, therefore, evident that the Mukhtiar of the respondent had at every stage taken all possible steps in connivence with the process server to keep the tenant ignorant of the proceedings till he succeeded in throwing him out.

Apart from the. circumstances narrated above even on the evidence available on the record it could not be reasonably inferred that the tenant had refused to accept service as alleged by the respondent. Out of the four witnesses examined by the respondent R.W. 2 and R.W. 3 being not marginal witnesses of the report on the summons, their presence at the relevant time could not be accepted. It is not difficult for the landlord to secure any number of witnesses to depose that the tenant had refused to accept service in their presence and so no reliance could be placed on such like witnesses. R.W. 4, the only attesting witness had admitted in his statement taat his shop was situated at a distance of 150 yards and 25/30 shops intervened between his shop and the shop in dispute. He is running a barber''s shop and it would not be difficult to secure the services of such a person to attest a false report Otherwise also there was no reason as to why the report was got attested from a person whose shop was far away from the shop in dispute and not from any shop keeper in the neighbourhood. Moreover, this witness stated that he could not name the person who refused to accept service. He also never deposed that any copy of the summons or the petitions was pasted at the outer door of the shop. The statement of this witness, therefore, does not show that the summons was presented to the petitioner and it was he who refused to accept the same. Nor this witness supports the averment in the report that a copy of the summons and of the petition was pasted at the outer door of the shop. The Mukhtiar of the respondent was obviously a highly interested person and the moving figure behind the whole show. Moreover, it is very well known that no tenant of a business premises can afford to allow exparte proceedings to be taken in an ejectment petition and thereby lose the very means of his livlihood. There was thus hardly any evidence on the record to rebut the statement of the tenant that he never refused to accept service which was fully corroborated by the probabilities and the circumstances discussed above in detail. The finding of the Rent Controller on issue No. 1 is accordingly reversed.

As regards the finding on issue No. 2, it is highly doubtful if the period of limitation provided for setting aside the ex parte decrees would apply to the ex parte order passed by the Rent Controller. Even if that may be so the limitation would be 30 days from the knowledge of the ex parte order in case the judgment-debtor is held to have been not duly served. As found above, the tenant having been not duly served, the application filed by him within 30 days of the knowledge of ex parte order was obviously within limitation and the finding of the Rent Controller to the contrary also has to be reversed.

Before parting with the judgment I cannot help observing that the Rent Controller in this case did not perform his duties earnestly and properly. The rent laws have been enforced by the Legislature for the protection of the tenants from the vagaries of their landlords. The whole purpose of the Legislature would be defeated if the Rent Controller allows the lanlord to abuse the process of the court to seek ex parte ejectment order fraudulently. While ordering exparte proceedings on a report of refusal, the provisions of rule 19, Order 5, Civil Procedure Code, require the court to satisfy itself regarding the genuineness of such report before declaring summons to have been duly served. The duty cast on the Rent Controller in ejectment petition from a business premises would be more stringent in this regard because the shop cannot ordinarily be got vacated and the landlords often resort to fraudulent means to get the ex parte ejectment orders. In the present case, the Rent Controller without any serious consideration of the report of the process server readily accepted the same and ordered ex parte proceedings. Even at the stage of the execution, the Rent Controller again readily accepted the report of the bailiff that the demised premises were lying locked and orders may be passed to deliver the possession by breaking open the lock without caring to notice that the business premises were not likely to remain closed except on Sundays. Because of this laxity on the part of the Rent Controller, the Mukhtiar or the respondent succeeded in his decietful designs and the tenant was thrown on the road without affording him any opportunity of hearing.

For the reasons recorded above, this petition is allowed with costs and the impugned order reversed. The case will now go back to the Rent Controller for taking further proceedings in the petition for ejectment in accordance with law.