Kesar Singh vs Tara Chand and another

P.C. Pandit, J.—This is a revision petitition filed by Kesar Singh u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949, hereinafter called the Act, against the order of the Rent Controller, Kaithal, refusing to set aside the ex parte eviction order passed against him at the instance of Tara Chand.

In February 1966, Tara Chand filed on ejectment application u/s 13 of the Act against Prem Chand and Kesar Singh. The grounds of ejectment were the. non-payment of arrears of rent by the tenant Prem Chand and subletting of the premises by him in favour of Kesar Singh Notice of the application was given to the opposite party for 6th April. 1966. On 13th March, 1968, personal service was effected on Prem Chand and as regards Kesar Singh the report of Karam Chand, Process Server, was that he had refused to accept notice and, consequently, the same was affixed on the outer door of his residence. On 6th April, 1966. the date fixed in the case, the applicant and his counsel were present and Prem Chand was absent inspite of service. Since Kesar Singh had refused to accept service, therefore, it was ordered that ex-parte proceedings be taken against both him and Prem Chand. 2nd May, 1966, was fixed for taking the ex parte evidence On that date, the applicant produced two witnesses and thereafter closed his evidence. On the same day, an order of ejectment was passed both against Prem Chand and Kesar Singh.

On 30/31st January, 1967, only Kesar Singh moved an application for setting aside the ex-parte order of eviction passed against him. His case was that the summons was not duly served upon him and he came to know of the order of ejectment against him on 11th January, 1967, when Tara Chand made a mention of this eviction order in the written statement filed by him in some other case.

This application was resisted by Tara Chand, who pleaded that it was barred by limitation and that there were no sufficient grounds for setting aside the ex-parte order.

The Rent Controller came to the conclusion that the application had been filed beyond time and there were no sufficient grounds for setting aside the ex-parte ejectment order. Against this order, the present revision petition has been filed by Kesar Singh.

The main point to be determined in this case is whether proper service had been effected on the petitioner. It is undisputed that if the petitioner could show that the summons was not duly served on him, the ex parte order would be liable to be set aside. The report of the Process Server shows that since Kesar Singh refused to accept service of the summons, the same was affixed on the outer door of his residence it has not been stated that along with the summons a copy of the abetment application filed by Tara Chand was also affixed at that place. The question is whether under these circumstances it can be said that due service was effected on the petitioner. Order 5. Rule 2, Code of Civil Procedure, says that every summons shall be accompanied by a copy of the plaint, or, if so permitted, by a concise statement Under the High Court Rules and Orders, Volume IV, Chapter VIII-B which deals with "Service of process", at page 124 under the heading "(c) Proof of Service", para 3(v) states-

The nature of the Proof of service which the Court ought to require in each case, according as it falls under one or other of the various relevant provisions of the Coda of CPC relating to service of summons, may be shortly stated as follows:

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(v) If the service be made under Order V, Rule 17, it should, in like manner, be proved according to the circumstances of the case, either that the persons to whom the summons or notice was tendered refused to sign the acknowledgment, though he was informed of the nature and contents of the document.

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It may be mentioned that Order 5, Rule 17, Code of Civil Procedure, deals with the procedure when defendant, refuses to accept service or cannot be found.

It will, thus, be seen that along with the summons, the copy of the application should also have been sent to the petitioner and if he had refused to accept service, the same should have been affixed on the outer door of his house. From the language employed in para 3(v), it is also clear that the person concerned has to be informed of the nature and the contents of the case against him.

It has been held by a Division Bench of this Court, consisting of Dua and Mahajan JJ. in Jagat Ram v. Shanti Sarup (1865) 6. P.L. R. 46, that the words "due service" in the context of the proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act must mean service along with the copy of the application''. Mere service of summons will not make the hearing a first hearing; unless the summons has been served with a copy of the application. The only way in which meaning can be given to the word ''due'' is that the tenant is made aware of what he is to answer in response to the service of the summons.

In the instant case, it has not been established that the copy of the ejectment application was also sent along with the summons to the petitioner and the same was affixed on the outer door of his residence. This being so, it cannot he held that due service was effected on him. Under these circumstances, the ex parte order of ejectment passed against him has to be set aside.

The result is that this petition succeeds and the impugned order is quashed, There will, however, be no order as to costs. Parties have been directed to appear before the Rent Controller on 29th January, 1971, for further proceedings in the case.s