Popatbhai Rajanbhai Patani vs Raimalbhai Popatbhai Pattani

Abhilasha Kumari, J.—RULE. Mr. Pankaj K. Soni, learned Counsel waives service of notice of rule, on behalf of the respondent.

This petition has been preferred invoking Article 227 of the Constitution of India, inter alia with a prayer to quash and set aside the judgment and order dated 18th November, 2009 passed in Civil Revision Application No. 10 of 2009, by the Appellate Bench of the Court of Small Causes, Ahmedabad whereby the order dated 15th September, 2009, passed by the Court of Small Causes in Civil Miscellaneous Application No. 86 of 2009, has been confirmed.

Briefly stated, the relevant facts of the case are that the respondent, who is the original plaintiff, instituted H.R.P. Suit No. 779 of 1993 against the petitioner, inter alia with a prayer for grant of permanent injunction and recovery of the suit premises, on the ground that the tenant is in arrears of rent. As many as 5 issues were framed and the suit of the present respondent was decreed with costs, by judgment and order dated 23rd November, 2000. The petitioner was directed to handover the possession of the suit premises to the respondent by 31st December, 2000. As stated in the said judgment and decree, the petitioner, who was the original defendant in the suit, was served with summons and appeared through an advocate, but did not file the written-statement. Thereafter, on 7th March, 2009, the petitioner preferred an application for condonation of delay for setting aside the ex parte judgment and decree, being Civil Miscellaneous Application No. 86 of 2009. The said application has been rejected by order dated 15th September, 2009. Being aggrieved thereby, the petitioner approached the Appellate Bench of the Court of Small Causes, by filing Civil Revision Application No. 10 of 2009, which has been rejected by passing the impugned order dated 18th November, 2009, giving rise to the filing of the present petition.

Mr. P.T. Jasani, learned Counsel for the petitioner, has submitted as below:

(A) That, the impugned order is contrary to law, facts and evidence on record inasmuch as, the Appellate Bench below has wrongly looked into the contents of the adjournment application and retirement pursis, filed by the learned Advocate for the petitioner, and has come to the erroneous conclusion that the petitioner has remained absent intentionally.

(B) That, the Courts below have not considered the aspect that notice was not served upon the petitioner validly, therefore, he could not appear in the suit and had no knowledge about the passing of the ex parte judgment and decree. The petitioner came to know about the ex parte decree, only when he was served with notice dated 27th January, 2009 of the Executing Court and taken from the date of knowledge, which is 27th January, 2009, there is no delay in filing the application for setting aside the ex parte decree, which has been filed on 7th March, 2009.

(C) That, the learned Advocate for the petitioner withdrew his appearance by filing a retirement pursis dated 13th March, 1996. Thereafter no notice has been served upon the petitioner to appear before the trial Court. It is not correct that notice was served, as alleged, as the Bailiff, who served the notice has colluded with the respondent, and the signature of the petitioner is a forged and fabricated one. The second notice issued after the retirement of the learned Advocate, contains the signature the petitioner, which is also not the signature of the petitioner. From the above, it is clear that notice has not been properly served. Either, there is a mistake, or mischief has been played by the process server, in collusion with the respondent. The Bailiff is a government servant, who has either played mischief or served summons to a wrong person, thereby causing injustice to the petitioner. The petitioner could not appear before the trial Court, as he had no knowledge regarding the proceedings, and these aspects have not been considered by the Courts below, in proper perspective. The petitioner filed the application as soon as he came to know of the execution proceedings and there is no delay in filing the same. It is the knowledge regarding the date of hearing, that is important, and not knowledge of pendency of proceedings. The signature of the petitioner taken by the process server, on service of summons, is doubtful and his signature appended on the notice, after the retirement of the learned Advocate, is equally doubtful and is not a proof of valid service. It cannot, therefore, be said that notice has been duly served.

(D) That, the petitioner is a poor person and even otherwise, the respondent landlord does not have a clear title to the property in question, which can be proved by the petitioner, if the ex parte decree is set aside.

(E) That, the impugned order is not only unjust, but is also erroneous, as the relevant material on record, regarding service of notice has not been properly appreciated by the Courts below.

3.1 In support of the above submissions reliance has been placed by the learned Counsel for the petitioner on the following judgments,

(1) G.P. Srivastava Vs. Shri R.K. Raizada and Others,

(2) Sunil Kumar Sabharwal v. Gurpreet Singh and Ors. AIR (2000) SC 2310

The petition has been strongly contested by Mr. P.K. Soni, learned Counsel for the respondent, by submitting as under:

(i) That, the petitioner is a tenant in arrears. Ever since 1983, the petitioner has not paid a single rupee towards rent, which led the respondent landlord to institute the suit. It is recorded in the orders of the Courts below, that after the institution of the suit, summons were served on 15th June, 1993, which is evident from the signature of the petitioner. The learned Advocate for the petitioner filed his ''Vakalatnama'' on 23rd July, 1993, and prayed for time to file a written-statement. Several applications were filed for adjournments. However, as the petitioner did not cooperate with his learned Advocate for about three years, the said Advocate submitted his retirement pursis on 13th March, 1996. It is stated in the said retirement pursis that the petitioner did not remain present before the Court and did not meet his lawyer, when called, for filing the written-statement. The learned Advocate informed the petitioner of the next date of hearing on 20th February, 1996, by R.P.A.D., as mentioned in the retirement pursis, asking him to remain present on that date. Permission to retire was granted by the Court on 13th March, 1996. Thereafter, fresh notice was issued by the trial Court on 21st March, 1996, which has been duly served. The signature of the petitioner has been appended on the said notice and the Bailiff has stated so, on oath. The allegations regarding connivance of the Bailiff or mischief played by him are absolutely false and unsupported by material on record. They do not constitute a proper explanation for the delay of about nine years. Such allegations are being levelled to cover up the conduct of the petitioner. Even otherwise, if the application for condonation of delay filed by the petitioner is perused, no sufficient ground has been pleaded to explain the delay. The petitioner was very well aware regarding the next date of hearing in the suit, as is clear from the service of notice upon him, therefore, the version that the petitioner came to know about the proceedings only when executing Court issued notice to him on 27th February, 2009, cannot be believed.

(ii) That, the impugned judgment of the trial Court as well as of the lower Appellate Bench have been passed, after properly appreciating the material on record and does not suffer from any illegality or infirmity. Both the Courts below have recorded concurrent findings of fact based upon the material on record and at this stage, the Court may not interfere in exercise of supervisory jurisdiction.

No other point has been urged before me by the learned Counsel for the rival parties.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other material on record. A perusal thereof, makes it abundantly clear that after the institution of the suit, summons were served upon the petitioner on 15.06.1993. A copy of the summons is annexed at ''Annexure-E'', on pages-52 and 53 of the petition. The signature of the petitioner is clearly visible. This reveals that the petitioner was very well aware of the institution of the suit. It is also clear that no written-statement was filed by the petitioner and the learned Advocate for the petitioner filed a retirement pursis on 13.03.1996, as the petitioner did not cooperate with him or meet him, when called. The learned Advocate had also informed the petitioner, about the next date of hearing in the suit, by R.P.A.D. on 20.02.1996. Notice was issued by the trial Court for 21st March, 1996. A copy of the said notice is available at ''Annexure-H'' on pages-56 and 57 of the petition. The signature of the petitioner has been appended on the said notice, which has been duly served. The bailiff has endorsed on oath, on the summons and the notice that service has been duly effected. It is, therefore, clear that the petitioner was aware of the next date of hearing, but failed to appear.

5.1 It is now sought to be contended by the learned Counsel for the petitioner that the signature on the summons dated 15.06.1993, and on the notice dated 21.03.1996, have not been made by the petitioner. It is also being contended that the process server has colluded with the respondent, in order to defeat the rights of the petitioner. These allegations are absolutely unfounded, and not supported by any evidence on record. On perusing the copy of the summons and notice, it is evident that the Bailiff has endorsed that the petitioner is found and summons and notice are served upon him personally. This has been declared by the Bailiff, on oath. The Bailiff is a government servant and there is no reason for him to serve any other person or to play mischief, as alleged by the learned Counsel for the petitioner. No material exists on record, to give rise to such a presumption. This is the only explanation for the delay, that has been advanced by the learned Counsel for the petitioner. Even if the application for condonation of delay is perused, a copy of which is annexed as ''Annexure-B'' on page 33 and 34 of the petition, no other explanation is forthcoming.

5.2 The decree has been passed against the petitioner and now he has come up with the case that the signatures on the summons and notice, respectively, are forged and fabricated ones, which clearly appears to be an afterthought and remains unsubstantiated by any material on record.

5.3 In my considered view, the record reveals that there is due service of process on the petitioner. Not only that, the learned Advocate has also informed him regarding the next date of hearing by R.P.A.D.. It is not the case of the petitioner that he has not received the said communication. In light of the above, the version now being put forth by the petitioner, that he came to know about the judgment and decree of the trial Court only on 27th January, 2009, when he received the notice of the execution proceedings, is not convincing and cannot be accepted.

5.4 Insofar as the reliance placed by the learned Counsel for the petitioner on the judgment of the Supreme Court in G.P. Srivastava v. R.K. Raizada and Ors. (Supra), wherein it has been held that if there is sufficient cause shown for non-appearance, the Court must set aside the ex parte decree under Order 9, Rule 13 of the Code, is concerned, there is no doubt regarding the proposition of law. However, it is not applicable to the facts of the present case, as the petitioner has failed to show sufficient cause for the delay in the application, except for stating that the summons and notice were not served. Moreover, the present application is not filed under the provisions of Order 9, Rule 13 of the Code, but is an application for condonation of delay, in filing the application for setting aside ex parte decree. In this context, the question of setting aside the ex parte decree, does not arise.

5.5 In the judgment in Sunil Kumar Sabharwal v. Gurpreet Singh and Ors. (Supra), relied upon by the learned Counsel for the petitioner, it has been held that knowledge of pendency of the suit cannot be equated with knowledge of the date of hearing, provided under second proviso to Order 9, Rule 13. This judgment will also not apply to the facts of the case in hand, as the application that has been rejected by the trial Court, which order is confirmed by the impugned order, is an application for condonation of delay. Even otherwise, the record reveals that the petitioner was duly served with notice of the next date of hearing, in the suit, but failed to appear in spite of valid service.

5.6 It is clear from the impugned order that the order of the Trial Court has meticulously examined and all aspects have been taken into consideration. In B.K. Muniraju Vs. State of Karnataka and Others, the Apex Court observed has as under:

It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

5.7 The impugned order of the Appellate Bench does not suffer from any illegality, infirmity or jurisdictional error, so as to warrant interference, in exercise of the supervisory jurisdiction of this Court.

For the aforestated reasons, the petition fails, and is dismissed.

6.1 At this stage, learned Counsel for the petitioner has prayed that the execution proceedings may be stayed, as the petitioner would like to approach the higher forum. This request has been strongly opposed by the learned Counsel for the respondent. As the execution proceedings are not the subject-matter of the petition, the prayer made by the learned Counsel for the petitioner cannot be accepted. However, as the petitioner would like to approach the higher forum, the operation of this judgment shall remain suspended, for a period of FOUR WEEKS, from today. Rule is discharged.