Kewal Sharma vs Subhash Chander Anand

S.P. Goyal, J.—This petition u/s 15 of the East Punjab Urban Rent Restriction Act (hereinafter called the Act) is directed against the order of the Rent Controller, Jullundur, dated June 14, 1977, dismissing the application for letting aside ex parte order of eviction.

The ejectment application filed by the respondent was registered on November 13, 1976 and notice was issued to the petitioner for December 2, 1976 by ordinary process as well as under registered cover. The summons and the registered letter were returned unserved with the report that the respondent was not available having gone out of station In connection with his business. Instead of issuing fresh summons, the trial Court ordered service to be effected by a beat of drum and the same was duly effected on January 24, 1977. The petitioner having still not appeared, the proceedings were taken ex parte against him and the ejectment order passed on February 17, 1977.

The petitioner having come to know of the ex parte order moved an application for setting aside the same. The application was opposed by the respondent and on the pleadings of the parties, the trial Court framed the following issues :

Whether there is sufficient cause to set aside the ex parte order of ejectment dated February 17, 1977 ?

Relief.

The only contention raised before the trial Court was that no ground had been made out for ordering substituted service and the petitioner, therefore, having been not duly served, ex parte order was liable to be set aside. The trial Court, however, negatived this plea and dismissed the application

Before me, the learned counsel for the petitioner again urged the same ground that the petitioner having been not duly served, ex parte order was liable to be a set aside. A perusal of the provisions of Order 5, Rule 20, Code of Civil Procedure, would show that substituted service can be ordered only 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 that for any other reason the summons cannot be served in the ordinary way. No such opinion was formed by the Rent Controller while ordering substituted service. Again, the process issued had been returned with the report that the petitioner had gone out of station in connection with his business. There was, thus, no report even that the petitioner was avoiding service. In these circumstances, there was no justification for the Rent Controller to order substituted service because the law requires that efforts should be made to serve the party personally before a resort can be taken to substituted service. In similar circumstances, D.K. Mahajan, J. as he then was, in Ram Krishan v. Smt. Janki Devi 1973 R.C.J. (S.N. 29) 27, held that there was no justification to order substituted service and consequently set aside the ex parte order.

In view of the above discussion, this petition is allowed, the ex parte order dated February 17, 1977 is set aside and the case is sent back to the Rent Controller for further proceedings in accordance with law. The petitioner shall be entitled to his costs and for that purpose counsel fee is assessed at Rs. 200/-. The parties, through their counsel, have been directed to appear before the Rent Controller, on December 5, 1977.