Ram Charan vs Ravi Bala Jain

L.N. Mittal, J.—Defendant Ram Charan has filed the instant revision petition under Article 227 of the Constitution of India.

Respondent Ravi Bala Jain filed suit for possession of demised property by ejectment of defendant therefrom, alleging that the defendant was tenant in the disputed shop under the plaintiff. The suit was decreed ex-parte, vide judgment dated 14.01.1998 (Annexure P-1). The defendant- petitioner moved application dated 27.11.1998 (Annexure P-2) for setting aside the ex-parte judgment and decree dated 14.01.1998, alleging that the defendant was never served in the suit and the report of refusal was procured by plaintiff-respondent.

Plaintiff-respondent, by filing reply (Annexure P-3), opposed the aforesaid application and controverted the allegations of the defendant.

Learned Civil Judge (Senior Division), Panipat, vide order dated 04.01.2002, dismissed the defendant''s application for setting aside ex- parte judgment and decree. Appeal preferred by the defendant against the said order has been dismissed by learned Additional District Judge, Panipat, vide judgment dated 23.07.2007. Feeling aggrieved, the defendant has preferred the instant revision petition under Article 227 of the Constitution of India challenging the aforesaid orders of the trial court and the appellate court.

I have heard learned Counsel for the petitioner and perused the case file.

Perusal of the judgment of the appellate court reveals that summon dated 02.03.1995 was issued in the suit to the defendant for 21.03.1995. The summons was received back with the report that defendant had gone out of station in connection with business activities. Similar report was made on summons issued for 05.06.1995. Thereafter, summons dated 24.07.995 was issued to the defendant for 17.08.1995. When the process server went to serve the said summons, defendant''s wife told the process server that the defendant had gone to Patna in connection with business activities and it was not certain when the defendant would return. The process server made another attempt to serve the said summons on 14.08.1995, when defendant''s servant told the process server that the defendant had gone outside. Thereafter, summons dated 12.10.1995 was issued to defendant for 26.10.1995. The process server went to serve the said summons on the defendant on 19.10.1995, but the defendant, who met the process server at the disputed shop, flatly refused to accept the summons and thereupon, one copy of the summons was affixed at a conspicuous place on his shop. No one came forward to attest the said report as witness. Defendant also misbehaved with the process server. On the basis of the aforesaid report of refusal followed by affixation, the defendant was proceeded ex-parte in the suit.

Learned Counsel for the petitioner vehemently contended that provision of Order 5 Rule 18 of the CPC (in short - CPC) has not been complied with. The contention cannot be accepted. Order 5 Rule 18 CPC provides that report to be made by the process server on the summons should also contain the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons. Learned Counsel for the petitioner contended that in the instant case, the report of the process server has not been attested by any witness. Reliance in support of this contention has been placed by learned Counsel for the petitioner on a judgment of Division Bench of this Court in the case of Babu Ram Bhatnagar v. Satish Kumar Rawal reported as 1991 (2) PLR 234.

I have carefully considered the aforesaid contention, but find no force therein. In the case of Babu Ram Bhatnagar (supra), ex-parte ejectment order had been set aside by the Rent Controller. The landlord preferred revision petition against the same. In that case, report of process server had been attested by one witness, but the said witness was not examined by the landlord to prove the said report. Moreover, in that case, notice was served in Gharaunda (District Karnal), but address of the witness, who attested the report on the notice, allegedly served on the tenant, was given to be of Barrot, District Merrut (U.P.). In these circumstances, it was held that the Rent Controller was justified in setting aside the ex-parte ejectment order. In the instant case, however, the process server has reported on the summons that nobody was ready to attest the report made by him on summons. On the other hand, from the sequence of events leading to order of ex-parte proceedings against the defendant, as noticed herein above, it is manifest that the defendant intentionally did not appear in the suit. On two occasions, the defendant was reported to be out of station in connection with business activities. On the third occasion, defendant''s wife told that the defendant had gone to Patna. It would depict that the defendant''s wife came to know of the pendency of the suit. On the fourth occasion, defendant''s servant told that the defendant had gone out of station. It was on the fifth occasion that the defendant met the process server at the shop and the defendant refused to accept the summons and also misbehaved with the process server. After refusal of the defendant to receive the summons, the process server, in accordance with provisions of Order 5 Rule 17 CPC, affixed the summon on conspicuous part of the disputed shop. It was thus valid service. The defendant was rightly proceeded ex-parte. The defendant intentionally did not appear in the suit to contest the same. The courts below were justified in dismissing the defendant''s application for setting aside the ex-parte judgment and decree dated 14.01.1998. There is no illegality or infirmity in the orders of the courts below.

For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed.