K.K. Dixit vs Madan Gopal Choubey

Sanjay Yadav, J.—With consent of learned counsel for the parties matter is heard finally.

Alleging non observance of mandatory provisions contained under Section 23B read with the form specified in the second schedule of Madhya Pradesh Accommodation Control Act, 1961 by the Rent Controlling Authority, the applicant calls in question the order dated 7.6.2014 passed by Sub Divisional Officer cum Rent Controlling Authority in Revenue Case No.43/B-121/2013-14; whereby, an application under Order 9 Rule 13 of the Code of Civil Procedure 1908 for setting aside exparte eviction order dated 21.2.2014, has been dismissed.

Record reveals that a proceedings under Section 23A of 1961 Act was brought by respondent before the Rent Controlling Authority. Notice whereof where tendered on the applicant respondent by Registered A/D which returned with an endorsement that the addressee had refused to accept the notice. The Authority without recording evidence of the postman presumed the same to be correct and by order dated 15.1.2014 directed for service of notice to respondent by �Chaspa� for appearance on 25.1.2014. On 25.1.2014 the Presiding Officer was not available. The matter was posted on 31.1.2014; whereon for non appearance of respondent, he was proceeded ex-parte and an ex- parte eviction order was passed on 21.2.2014. An application under Order 9 Rule 13 of the CPC was filed on 5.6.2014 for setting aside the ex-parte order along with an application under Section 5 of the Limitation Act 1963, seeking condonation of delay on the ground that the summons were not properly served and it is only when the ex-parte order was put to execution the applicant came to know on 2.6.2014 about the ex-parte order. Accordingly it was urged that the application is within the period of limitation from the date of knowledge. The Authority by order dated 7.6.2014 however, dismissed the Application.

The order as apparent is a cryptic one and does not take into consideration relevant provisions of 1961 Act and of the CPC.

Section 23B of 1961 Act provides:

"23-B. - Rent Controlling Authority to issue summons in relation to every application under Section 23-A.- (1) The Rent Controlling Authority shall issue to the tenant a summons, in relation to every application referred to in section 23-A, in the form specified in the Second Schedule.

(2) Save as otherwise provided in this Act, the provisions of order V and Order XVI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) regarding issue and service of summons to a defendant and summoning and attendance of witnesses to give evidence or to produce documents shall apply "mutatis mutandis" to issue and service of any summons to a tenant or opposite party or to a witness to give evidence or to produce documents in an inquiry or proceeding under this Chapter.�

The form under Second Schedule is in the following form:

� SECOND SCHEDULE (See Section 23-B)

Form of summons in a case where recovery of possession of accommodation is prayed for on grounds of "bona fide" requirement

Office of the Rent Controlling Authority, (Place)....

To .......................................

.......................................

......................................

Eviction Case No......

Whereas Shri ........ has filed an application (a copy of which is annexed) for your eviction from (here insert the particulars of the accommodation) on the grounds specified in clause (a)/clause (b) of section 23-A of the Madhya Pradesh Accommodation Control Act, 1961 (No.41 of 1961).

You are hereby summoned to appear before the Rent Controlling Authority within fifteen days of the service for hearing and to obtain the leave of the Rent Controlling Authority to contest the application for eviction on the grounds aforesaid; in default whereof the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said accommodation. Subject as aforesaid the date for further proceedings shall be �............

Leave to appear and contest the application may be obtained on an application to the Rent Controlling Authority supported by an affidavit as is referred to in Section 23-C. Given under my hand and seal.

This ........ day of ...... 19..

Rent Controlling Authority"

As per the object of the provisions contained under Section 23B, mandatory it is to issue summons in the form as provided under the Statute because besides appearing before Authority a tenant has to obtain leave from the Authority to contest the application. This further requires that the copy of application under Section 23A must accompany the summons (It is in consonance with the Order V Rule 2 CPC which mandates that �every summon shall be accompanied by a copy of the plaint�).

In the case at hand, the record reveals that notices were sent through ordinary notices issued in other revenue cases without affixing the copy of the application and without calling upon the respondent tenant, to seek leave to defend.

The record also reveals that after order of service through ''chaspa'' on 15.01.2014, the Rent Controlling Authority failed to observe the stipulation under Order 5 Rule 17 as made, mutatis mutandis applicably by sub- Section (2) of Section 23B of 1961 Act. Rule 17 Order 5 stipulates that -

"17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, (who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time) and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."

There being no material on record to establish that the process server was examined before proceeding ex-parte, the entire proceeding is rendered perverse.

Having lost sight of these aspect Rent Controlling Authority ignored the provisions contained under Article 123 of the Limitation Act 1963 which stipulates-

Having thus considered the impugned order dated 7.6.2014 is not sustainable in the eyes of law and is hereby quashed. Consequently, the application for setting aside the ex-parte order dated 21.02.2014 is allowed.

The order dated 21.2.2014 is set aside.

The parties are directed to appear before Rent Controlling Authority on 26.8.2014 whereon the applicant tenant shall file an application under Section 23C(1) as also an application for condonation of delay.

The Rent Controlling Authority shall consider and decide the application within a period of 10 days. 16. Thereafter learned counsel for the appellant assures that applicant shall not seek any unnecessary adjournment and shall co-operate for early conclusion of proceedings before the Rent Controlling Authority.

In view of above it is directed that Rent Controlling Authority shall conclude the proceedings by 31.10.2014.

Civil Revision is disposed of finally in above terms.