Harbans Singh vs Amrik Singh and Another

V.K. Jhanji, J.—This revision petition is directed against order dated 3.12.1979 of Rent Controller, Sultanpur Lodhi, dismissing the application for setting aside the ex-parte order of eviction.

Respondent filed an ejectment application against the petitioner on 10.1.1978. After scrutiny by the Reader, it was put up before the Rent Controller on 11.1.1978 and notice was ordered to be issued to the petitioner for 8.2.1978. On 8.2.1978, petitioner was ordered to be served through beat of drum and affixation for 2.3.1978. On 2.3.1978, after receipt of report of the process-server that petitioner has been served through proclamation and affixation, the petitioner was ordered to be proceeded against ex-parte. Rent Controller thereafter recorded ex-parte evidence and on the basis of said evidence, the petitioner was ordered to be ejected vide order date 31.5.1978. Petitioner''s wife, namely, Smt. Kewal Kaur filed an application dated 1.8.1978 under Order 9 Rule 13, Code of Civil Procedure, on behalf of the petitioner for setting aside the ex-parte ejectment order passed against her husband. In the application, it was averred that the ex-parte order has been obtained against the petitioner after giving false address as the petitioner had been residing in Dubai. It was also averred that the petitioner was never served in the ejectment application, nor he ever refused to accept service of summons. On contest, the Rent Controller dismissed the application. The present revision petition has been filed against the order dismissing the said application.

In this revision petition, it has been contended by counsel for the petitioner that the Rent Controller ordered the petitioner to be served through substituted ser vice in haste inasmuch he did not record his satisfaction that the petitioner was keeping out of the way for the purpose of avoiding service. Against this, counsel for the respondent has contended that the discretion exercised by the Rent Controller in dismissing the application being not perverse, the order is not to be interfered with in revisional jurisdiction.

After hearing the learned counsel for the parties, I am of the view that the revision petition deserves to succeed. Substituted service can be ordered under Order 5 Rule 20, Code of Civil Procedure, which reads as under:-

"20. Substituted service:

(1) Where the Court is satisfied that there is reason is believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to the served by affixing a copy thereof in some conspicuous place in the court-house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

(1-A) xxx xxx xxx

(2) xxx xxx

(3) xxx xxx xxx

A perusal of the provisions of Order 5 Rule 20, Code of Civil Procedure, would show that substituted service can be ordered where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or cannot be served in an ordinary way. The satisfaction of the Court contemplated by the rule is objective satisfaction and so, the material must exist on the record to justify the conclusion by the Court. On the facts proved on record of this case, it is not discernible that there was any material before the Rent Controller to come to the conclusion that the petitioner was avoiding service. As seen, petitioner could not be served for 8.2.1978 as the report of the process-server indicated that the petitioner has not been found as the shop was lying closed. On the basis of report of the process-server, the Rent Controller directed that the petitioner be served through beat of drum and affixation though there was no report of the process-server that the petitioner was avoiding service. In fact, it has been proved on record that the! petitioner was away to Dubai from 16.7.1976 to 16.10.1978. In my view before ordering j substituted service it was mandatory on the part of the Rent Controller to record a finding that there are reasons to believe that the petitioner was evading service. Besides, it has time and again been held by this Court that order of substituted service for serving the defendant should not be passed lightly, but only as a last resort when , there is no possibility of effecting service on him by other means.

Consequently, this revision petition is allowed and order dated 3.12.1979 set aside. As a Consequence thereof, ex-parte eviction order passed against the petitioner too stands set aside. Rent Controller is directed to decide the ejectment application on merits in accordance with law.

Parties through their counsel are directed to appear before Rent Controller, Sultanpur Lodhi, on 20.5.1997. Records be sent back.