Parvatibai (Smt.) vs Mohd. Sharif and Another

N.K. Mody, J.—Being aggrieved by order dated 10.12.2010 passed by XII Additional District Judge, Indore in Misc. Appeal No.03/2009 whereby order dated 27.11.2009 passed in MJC No. 02/2009 by II Civil Judge, Class 2, Indore whereby the application filed by the respondent No. 1 u/order 9 rule 13 CPC for setting aside ex parte decree dated 08.09.2007 passed in CS No.273A/2006 was dismissed, was set aside, present petition has been filed.

Short facts of the case are that a suit for eviction was filed by the respondent No.2 against respondent No.1 on 15.12.2006 wherein it was alleged that respondent No. 1 is the tenant of the respondent No.2 @ 450/-per month. It was alleged that decree of eviction be passed against respondent No.1 u/s 12(1)(c) and (f) of the Madhya Pradesh Accommodation Control Act (for short, "the Act"). Suit proceeded ex parte against respondent No. 1 vide order dated 3.2.2007. After recording of evidence, ex parte decree was passed on 18.09.2007 in favour of the petitioner whereby the respondent No. 1 directed to be evicted from the suit accommodation on the grounds available u/s 1(1)(c) and (f) of the Act. In compliance of the ex parte decree dated 18.09.2007, an execution Petition was filed by the respondent No.2 on 14.12.2007 in which possession was taken by respondent No.2 on 6.4.2008 from respondent No.1 through Court. Thereafter, on 7.4.2008 an application was filed by the respondent No. 1 u/o IX r. 13 CPC which was registered as MJC No.02/2009. After holding summary enquiry application was dismissed vide order 27.11.2009 against which an appeal was filed by the respondent No. 1 which was numbered as 03/2009 and was allowed vide order dated 10.12.2010 whereby order dated 27.11.2009 and judgment dated 18.9.2007 was set aside and the case was remanded to the leaned trial Court to decide the suit on merits. Being aggrieved by the impugned order, present petition has been filed.

Leaned counsel for the petitioner argued at length and submits that petitioner examined two process servers to demonstrate that respondent No. 1 was duly served. It is submitted that, again one more process server was examined to demonstrate that in execution case also respondent No. 1 was duly served. It is submitted that the evidence which was relied upon by the learned trial Court was completely ignored by the learned appellate Court while allowing the appeal. Learned counsel submits that learned appellate Court also ignored the proviso of Order 9 r. 13 CPC.

Learned counsel placed reliance on a decision in the matter of Bhabia Devi v/s Permanand Pd Yadav (AIR 1997 SC 1919) wherein in the case of setting aside ex parte decree, where the plea was of absence of notice, Hon''ble Court observed that "Facts and evidence of process server, however, revealed that petitioner refused to put her sign or thumb impression on summon when they were handed to her She also refused to acknowledge the registered service, which is indicative of refusal to accept notice. It was held that Ex parte decree rightly passed.

Further reliance was placed on a decision in the matter of Parimal V/s Veena (AIR 2011 SC (Civil) 556) wherein Hon''ble Apex Court had an occasion to consider Second proviso to 0.9 r. 13 CPC and it was held that it makes it obligatory on appellate Court not to interfere with an ex parte decree unless it meets the statutory requirement.

Learned counsel submits that after getting vacant possession of the suit accommodation, suit-property was demolished as it was in a dilapidated condition and the property was also sold by the respondent No.2 to the petitioner vide sale deed dated 9.12.2007. Learned counsel placed reliance on a decision in the matter of Vannattankany Ibrayl v/s Kunhabdyulla Hajee [2001 (1) RCJ 268 (SC)] wherein shop was completely destroyed, Hon''ble Apex Court observed that "tenancy right stood extinguished for want of subject matter of demise and Section 108(B)(e) has no application in case of premises governed by Rent Control Act when it is completely destroyed by natural calamities. It was held that remedy available is civil suit for recovery of possession of land.

On the strength of the aforesaid position of law, learned counsel submits that petition filed by the petitioner be allowed and the impugned order passed by the leaned appellate Court be set aside.

Mr. O.P. Sharma, learned counsel for the respondent No. 1 submits that respondent No. 1 was having no knowledge about ex parte decree. It is submitted that summons were never served on respondent No. 1. It is submitted that for the first time, respondent No. 1 came to know about the decree when the possession of the suit accommodation was taken by the respondent No.2 through Court. It is submitted that immediately, thereafter, respondent No. 1 moved an application u/order/ 9 rule 13 CPC. It is submitted that suit accommodation was never in dilapidated condition. It is submitted that to avoid restitution the respondent No.2 sold the suit-property to the petitioner, who has demolished the accommodation to avoid restitution. Learned counsel further submits that this Court is having limited scope in revision and therefore, no interference can be made by this Court while exercising jurisdiction. For this contention, learned counsel placed reliance on a decision in the matter of D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, wherein Hon''ble Apex Court has observed that While exercising the jurisdiction u/s 115 it is not competent to the High Court to correct errors of fact, however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words "illegally" and "with material irregularity" as used in Cl.(c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law, after the prescribed formalities have been complied with."

Reliance is also placed on a decision in the matter of Pandurang Dhoni Chougule Vs. Maruti Hari Jadhav, wherein Hon''ble Apex Court has observed that "It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. It is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.

Reliance is also placed on a decision in the matter of Shilanath Mallik and others v/s Balabhadra Sutradhar and others (AIR 1962 Gau 121 ), wherein it was held that ex parte decree cannot be passed merely on Process server''s report. It was also held that enquiry by Court about defendant''s willful absence is necessary. Lastly, reliance is placed on a decision in the matter of G.P. Srivastava Vs. Shri R.K. Raizada and Others, wherein Hon''ble Apex Court had an occasion to consider Order 9 rule 13 CPC wherein it was held that while setting aside decree in ex parte the word "defendant", was prevented by any sufficient cause from appearing" it must be liberally construed where defence is reasonable, defendant approaches court for setting aside ex parte decree within statutory period and non-appearance is not malafide or intentional.

On the strength of the aforesaid position of law, learned counsel for the respondent No. 1 submits that no illegality has been committed by the learned appellate Court in allowing the appeal filed by the respondent No. 1. It is submitted that revision petition filed by the petitioner be dismissed.

From perusal of the record it is evident that along with the suit filed by the respondent No.2 an application was also filed u/order 39 rule 1 ad 2 CPC of which show cause notice was issued to the respondent No. 1. Thus on the basis of the show cause notice which was issued on the application filed by the respondent No.2 u/o 39 rule 1 and 2 CPC on which Court proceeded ex-parte against respondent No. 1.

Apart from this, from the evidence which has been adduced by the petitioner it is evident that no copy of the plaint was pasted along with summons. It is true that petitioner has examined three process servers. NAW/1 Suryasingh Chouhan Process Servant has stated that notice was returned by him as unserved. Similarly, NAW/3 Dhreej Singh is the process server who has served notice in the execution proceedings which is of no consequences. It is only NAW/2 Jagdish Yadav, Process Server, who has served notice by affixture. He has admitted that he has not bothered to record the statement or to obtain signature of the witnesses in whose presence summons were served by affixture. The notices which were served by affixture are marked as Ex. P/3 and P/4 which are the show cause notice of the application filed u/o 39 rule 1 and 2 CPC.

In the facts and circumstances of the case, this Court is of the view that no illegality has been committed by the learned appellate Court in passing the impugned order whereby the appeal filed by the respondent No. 1 was allowed and the order passed by the trial Court was set aside whereby the application filed by respondent No. 1 u/o 9 r.13 CPC was dismissed. Apart from this, revisional jurisdiction of this Court is limited. So far as second proviso to rule 13 of Order 9 is concerned, the same is not applicable in the present case as there is nothing on record on the basis of which satisfaction can be drawn that respondent No. 1 had notice of the date of hearing and had sufficient time to appear and answer the claim of respondent No.2.

In view of this, petition has no merits and the same is hereby dismissed.